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Judge Z Carelse

Capacity: Judge

First appointed as a judge: 2009, (Gauteng, Johannesburg)

Gender:  Female

Ethnicity:

Date of Birth: 16 October 1968

 

Key judgments:

  • Florence (Dodgen) v Broadcount Investments (Pty) Ltd and Others (LCC 148/08) [2012] ZALCC 11 (5 June 2012)
  • Nono Cynthia Mañana v Presiding Officer of the Childrens Court, Krugersdorp & Others 2013(4) SA 379 (GSJ)
  • CDH Invest NV v Petrotank South Africa (Pty) Ltd 2019 (4) SA 436 (SCA)
  • Emantanjeni Community v Commission on Restitution of Land Rights and Others (LCC 17/2018) [2019] ZALCC 31 (8 November 2019)
  • Mpume v Drakenstein Municipality and Another (128/2014) [2016] ZALCC 11 (24 June 2016)

 

Candidate Bio:

Gauteng High Court judge Zeenat Carelse has had to be tenacious to qualify to practise law, taking time after her Bachelors degree to work and raise money and a bursary to then enrol for her LLB.

Carelse is currently acting at the Supreme Court of Appeal until May. She previously acted there from October 2018-March 2019. She has also acted as a judge of the Land Claims Court from 2009 until the present.

In the 2012 Land Claims Court matter of Florence (Dodgen) v Broadcount Investments (Pty) Ltd & Others there were four major issues the court had to desalt with in this claim for the restitution of land taken from the Florence family in 1970.

These included: 1) The loss suffered by the plaintiff as a result of the dispossession of their rights and whether such loss would equate to just and equitable compensation, calculated at the time of dispossession, 2) the appropriate method used to calculate the value of the 1970 loss into present day value, 3) the amount of financial restitution the family should receive as consolation due to the hardship they suffered as a result of the dispossession 4) whether the second respondent (the government) could be ordered to pay for the costs relating to the erection of a memorial plaque.

After establishing that the applicant had been dispossessed Carelse then held that, according to the evidence, the purchase price had been paid in full at the time of the dispossession.

She found that “when interpreting a constitutional right such as the right to restitution the interpretation should be generous rather than a legalistic one, aimed at fulfilling the purpose of a guarantee and securing for individuals the full benefits of their constitutional rights.”

The “inescapable conclusion” was that equitable redress for the family should be the amount of their 1970 financial loss, escalated to its present day value”

In calculating this Carelse referred to the Farjas judgment, a case which determined that the Consumer Price Index (CPI) adequately caters for change in the value of money over time. The CPI was used to determine the value of the loss of the land over time.

Regarding the third issue, of a consolation payment or solatium, Carelse emphasised its symbolic nature and found further that “[t]he Florence family life was disrupted and the family was split up…the Florence family suffered emotionally, financially and psychologically by the forced removal”. The claimants were thus awarded R10 000.

Carelse declined to award the costs of a memorial plaque, on the basis that those costs had been agreed to between the plaintiff and defendant in a private settlement agreement and that the court lacked the jurisdiction to make such an order.

The matter was taken on appeal to the SCA and then the Constitutional Court. Considering the appropriateness of the CPI as a measure of the change of value of money over time the SCA found Carelse acted judiciously and held that “[i]t has already been found in Farjas that the LCC is entitled to rely upon the CPI to determine changes in the value of money, and we are bound by that decision. In these circumstances it cannot be said that the LCC misdirected itself in adopting the same approach.”

The appellate court found, however, that there was no basis for the conclusion that the LCC had no jurisdiction to order the state to pay the costs for the erection of a plaque and awarded R50 000 for this purpose.

The majority of the Constitutional Court held that the use of the CPI as a measure for the change in monetary value over time was correct. It further concluded that the LCC was correct in its finding that it had no power to order the respondent to pay for the erection of a memorial plaque, thereby reversing that part of the SCA’s decision.

According to her application form Carelse considers one of her most significant contributions to the law and pursuit of justice in South Africa to be her decision in 2013 Gauteng High Court matter of Nono Cynthia Mañana v Presiding Officer of the Childrens Court, Krugersdorp & Others.

Carelse submitted that this judgement was “groundbreaking” in that it solved one of the challenges preventing grandparents from accessing foster care grants for their grandchildren and “strengthened the legal status” of orphans.

The judge has been strong on people convicted of rape and gender based violence in judgments like S v Khanye and housing rights and eviction cases where municipalities have not fulfilled their obligations, including to provide alternative temporary accommodation for occupiers required to be evicted from buildings (Mpume v Drakenstein Municipality & Another).

The Johannesburg Bar, in their submissions on candidates to the JSC, noted that “[a] number of her judgments, including in her capacity as an acting judge of the Land Claims Court, indicate a particular competence in constitutional law.”

However, the Johannesburg Bar did have “some concerns” related to a full high court judgment that Carelse concurred with (but was not the writing judge), which was then overturned by the SCA.

“The SCA’s decision [in SAFA v Fli-Afrika] shows that the judgment was flawed, with the full court having misapplied Endumeni in interpreting the contract at issue,” the submission noted.

With a BA and LLB from the then-University of Durban-Westville, Carelse initially worked as public prosecutor (1994-1998) before joining the magistracy. She worked as a district magistrate in Johannesburg and Cape Town from 1998-2004 and then as a regional magistrate in Tembisa for four years. She was appointed to the Gauteng High Court in 2009.

 

 

April 2021 Interview: