Constitutional Court Justice Bess Nkabinde retires

March 1st, 2018

Retired Constitutional Court Justice, Bess Nkabinde, at a special ceremonial sitting at the Constitutional Court in December. Justice Nkabinde has served as a Justice at the Constitutional Court for 12 years.

By Kgomotso Ramotsho

Justice Bess Nkabinde has retired from the Bench of the Constitutional Court after serving for 12 years. A special ceremonial session was held on 7 December 2017 at the Constitutional Court where Justice Nkabinde delivered her final judgment on a labour related matter, Public Servants Association obo Ubogu v Head of the Department of Health, Gauteng and Others, Head of the Department of Health, Gauteng and Another v Public Servants Association obo Ubogu (CC) (unreported case no CCT6/17, CCT/14/17, 7-12-2017). Among the people who attended her final sitting were her family members and former Justices of the Constitutional Court, including former Justice Richard Goldstone, former Justice Albie Sachs and former Justice Yvonne Mokgoro

Justice Nkabinde’s life in law

According to a profile on the Constitutional Court website, Justice Nkabinde was born in Silwerkrans/Tlokweng, North West Province, in 1959. She matriculated from Mariasdal High School, in Tweespruit in the Free State in 1979 and obtained a BProc degree at the University of Zululand in 1983. In 1986, Justice Nkabinde obtained an LLB from North West University. She was awarded a Diploma in Industrial Relations with distinction in 1987 from Damelin. In 1984 to 1988 she worked as a State Law Adviser – Legislative Drafting in Bophuthatshwana. She was admitted as an advocate in 1988 in Bophuthatshwana and commenced her pupillage in 1989 at the Johannesburg Bar.

From 1990 to 1999 Justice Nkabinde worked as an advocate at the North West Bar, in civil, commercial, matrimonial, as well as criminal law matters. From February to October 1999, Justice Nkabinde was appointed as acting Judge of the Bophuthatswana Provincial Division. In November 1999, she received a permanent placement as judge of the High Court and also was an acting Judge of the Labour Court for one term in Johannesburg in 2000 and 2003.

In 2003 she was appointed to serve on the Special Tribunal on civil matters likely to emanate from investigations by the Special Investigative Units established in terms of the Special Investigating Units and Special Tribunals Act 74 of 1996. From October 2004 to May 2005, she was acting Judge of the Labour Appeal Court. Justice Nkabinde was also a member of the Sub-committee of the Coordinating Committee of the Justice System: On Racism and Sexism within the Judiciary Member in 2004. From 2004 to 2013, she was the Chairperson of the Rules Board for Courts of Law. From June to November 2005, she was the acting Judge of the Supreme Court of Appeal and was appointed as the Justice of the Constitutional Court in January 2006, while serving at the Constitutional Court, she was appointed Acting Deputy Chief Justice from May 2016 to June 2017 and Acting Chief Justice in November 2016.

Tributes for Justice Nkabinde

In his tribute to Justice Nkabinde, Deputy Chief Justice Raymond Zondo said Justice Nkabinde had a long journey as far as her career in law was concerned. He said during her judicial career, Justice Nkabinde made a significant contribution and handed down judgments that provided benefits to a large section of society in different branches of law.

Deputy Justice Zondo added that the judgment, Justice Nkabinde handed in her final sitting in the Ubogu case will not only help one person in that particular case, but will help many public service workers who have been suffering under the provisions of s 38(2)(b)(i) of the Public Service Act 103 of 1994. He said Justice Nkabinde would always enquire about her colleagues and ask about their families. ‘She is a wonderful woman’ Deputy Chief Justice Zondo added.

‘I take this opportunity on behalf of my colleagues and behalf of the entire judiciary of South Africa (SA), to say to Justice Nkabinde thank you very much,’ Deputy Chief Justice Zondo said. He added that Justice Nkabinde has served the country well and wished her everything of the best and pointed out that he had no doubt that Justice Nkabinde will continue in different ways to contribute to society.

Message from Advocates for Transformation

Advocates for Transformation’s, Anthea Platt SC said she had the pleasure of working with Justice Nkabinde when she was the chairperson of the Rules Board. She pointed out that Justice Nkabinde, in her leadership as chairperson of the Rules Board, placed those she was working with in a position to interrogate many rules that have far reaching consequences to the citizens of SA. She added that Justice Nkanbinde remains a beacon of hope and an inspiration to all women lawyers.

‘You, Justice Nkabinde, and other women justices have carved the path that shines a way for all women, especially women of colour that it is indeed possible to thrive and make a mark in the profession, which is in need of diversity and transformation’ Ms Platt SC said. She added that Justice Nkabinde’s success is one of the many reasons Advocate for Transformation will remain committed to cause in achieving transformation in the legal field and access to justice.

Message from NADEL

National Association of Democratic Lawyers (NADEL) member of the National Executive Committee, Mfana Gwala, said the appointment of Justice Nkabinde was an example of how gender advancement can be achieved. He said Justice Nkabinde’s retirement comes at a very young age and he believes that she will continue to be of service to the country.

Black Lawyers Association’s President, Lutendo Sigogo, sharing a joyous moment with retired Justice Nkabinde and the Law Society of South Africa’s representative, Attorney Mabaeng Denise Lenyai, after Justice Nkabinde’s retirement at the Constitutional Court.

Message from BLA

Black Lawyers Association (BLA) President, Lutendo Sigogo, said Justice Nkabinde is living proof that dedication to the cause of justice, is what distinguishes great personalities from the rest. ‘Through her life we learned that success is not determined by gender or race’ Mr Sigogo added. He pointed out that people succeed because they are given opportunities and do their best to fulfil those opportunities. Mr Sigogo said Justice Nkabinde transmitted beyond her race and gender and in her there is a true meaning of what the word woman means.

Message from the GCB

Representing the General Council of the Bar (GCB), advocate Craig Watt-Pringle SC, said he had gathered information from clerks of court who had previously worked with Justice Nkabinde. He said they had described Justice Nkabinde as a caring, warm and approachable person who took interest in others. He added that she was also generous about sharing her experience as a woman in the legal profession, particularly about the challenges women face.

Message from the NPA

National Prosecuting Authority’s (NPA’s) Director of Public Prosecution in South Gauteng, Andrew Chauke, said the NPA was fortunate and humbled to have been associated with Justice Nkabinde. He added that the NPA was indebted to Justice Nkabinde for her counsel and guidance. ‘We will remember her for the many cases she has presided over,’ Mr Chauke said.

Message from the LSSA

Law Society of South Africa (LSSA) representative, Mabaeng Denise Lenyai, said Justice Nkabinde has been true to her vision as a humble servant of the people, as a role model and as a jurist who has moulded SA’s jurisprudence and society with great respect throughout her career. She pointed out that in an interview for the Constitutional Court oral history project, Justice Nkabinde noted that the court is imbued with the wisdom of having diverse voices.

‘There is a need to have such voices, societal voices, so that you can have a rich jurisprudence at the end of the day. Justice Nkabinde’s voice has been such a voice. On behalf of the attorneys’ profession, we acknowledge and thank you for your contribution to the law, to the Constitutional Court, to the legal profession and to the citizens of our rich and diverse country,’ Ms Lenyai said.

Message from the Johannesburg Society of Advocates

The Johannesburg Society of Advocates, Vice Chairperson, advocate Leah Gcabashe SC, said Justice Nkabinde was one of the most distinguished jurists. ‘We as the Johannesburg Society of Advocates proudly claim you as one of our own,’ Ms Gcabashe SC said. The Johannesburg Bar said with conviction that as a representative of your generation, Justice Nkabinde, you not only discovered your mission as a jurist, but with determination and drive you made all effort to fulfil it. You have indeed made us proud and thank you for that,’ Ms Gcabashe said.

Ms Gcabashe noted that in Justice Nkabinde’s judgments, there is a clear record of sensitivity to issues of racism, equality, tradition and culture, physical security and integrity, homelessness, fertility and surrogacy, religion, constitutional obligation and many other issues.

Message from Parliament’s National Council of Provinces

National Council of Provinces’ Chairperson Thandi Modise, said Justice Nkabinde, in many of her judgments, has brought a lot of light into the lives of many people. She noted that she had seen the calm and patient manner in which Justice Nkabinde delivered herself when presiding at court and praised Justice Nkabinde on her judgments surrounding the issues of polygamy. ‘We admire you ma’am because many instances you have actually come out to say, “I am principled and live by the principles I believe in.” In many instances, we do not do that. We sacrifice ourselves, sacrifice what we believe in, because we occupying certain positions,’ Ms Modise added.

Word by Justice Nkabinde

Justice Nkabinde said that the occasion was a moving moment for her, having been a Justice at the Constitutional Court for 12 years. She thanked her family, colleagues, clerks of the court and the communities of Madikwe and Mahikeng for the support they have showed her through her journey. She particularly thanked her husband and children for putting up with her imperfections, and absenteeism at home and keeping up with her abnormal hours while she was serving the nation.

Justice Nkabinde added that December 2017 marked 12 years for her as a Justice at the Constitutional Court, but also marked 18 years for her as a Judge of the High Court, Labour Court, Labour Appeal Court, Supreme Court of Appeal and the Constitutional Court. She reflected also on the opportunity that she had to act as a Deputy Chief Justice for 11 months, as well as an acting Chief Justice for one month. ‘The opportunities to serve our people in different capacities have undeniably been a privilege in my life,’ Justice Nkabinde said. She pointed out that all this was through God’s grace and blessing and the support and encouragement from her family, friend’s colleagues and communities.

Justice Nkabinde pointed out that it was a single reason that triggered her into practising law. She said she resigned from the public service in the former Bophuthatshwana, for a simple reason of inequality. She added that together with her other colleagues they were treated differently from others and that she took offense to that and objected to the injustice, particularly because no reason whatsoever or any justification was given for the unfair discriminatory. ‘When I was threatened with all sorts of things I resigned and believed I could be a voice for those who cannot defend themselves,’ Justice Nkabinde said.

Justice Nkabinde spoke about the relationship of the three arms of government, namely, the legislature, the executive and the judiciary in terms of what they share and what separates them. She said the separation is only in a service of common principles and that the powers are all in the rule of law to realise the principles that are constitutional and fundamental. ‘I am saying this with the greatest respect, by the failure to comprehend the equal obligations of all three arms of government, to promote constitutional values, my observation over the 12 years of my service in this court particularly suggest that if the other arms of the government were to embark on legislative and executive process, characterised by the applicable constitutional values, the judiciary will play a far significantly less central role than it is present required to do,’ she said.

Justice Nkabinde pointed out that the policies and implications are approved with no or less regard to the constitutional values and for that the courts are and will always be in a far busier time and will constantly be perceived as overreaching when they are exercising their constitutional responsibility.

As she concluded, Justice Nkabinde said one of her wishes was to have more women appointed in the judiciary, particularly in the Constitutional Court Bench. She noted that it was long overdue and it had to happen for obvious reason, not because it is a question of numbers. ‘We must find women with potential, we with my sisters and brothers who are committed to a transformative agenda must assist in training to make this ideal,’ Justice Nkabinde said.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2018 (March) DR 14.

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