Bess Nkabinde

The Honourable Bess Nkabinde
Acting Deputy Chief Justice of South Africa
Incumbent
Assumed office 23 May 2016
Preceded by	Dikgang Moseneke
Justice of the Constitutional Court
Incumbent
Assumed office 1 January 2006
Appointed by	President Thabo Mbeki
Judge of the High Court of South Africa
In office November 1999 – 31 December 2005
Appointed by	President Thabo Mbeki
Personal details
Born	1 January 1959 Silwerkrans, North West Province
Alma mater	University of Zululand North-West University

Baaitse Elizabeth "Bess" Nkabinde (born 1959 in Silwerkrans) is a judge on the Constitutional Court of South Africa.^[1][2]

Early life

Nkabinde (née Motsatsi) was born in 1959 in Silwerkrans, in what was then the western Transvaal (and is now part of the North West province).^[1] She matriculated at Mariasdal High School in Tweespruit in 1979. Thereafter she obtained a BProc degree at the University of Zululand in 1983, an LLB from the North-West University in 1986, and a Diploma in Industrial Relations at Damelin College in 1988.^[2]

She worked as a legal adviser to the Bophutatswana government for four years, before becoming an advocate in 1988.^[1] She worked at the North West Bar for ten years before her first appointment as an acting judge in 1999.^[1]

Judicial career

In November 1999, Nkabinde was appointed to the Bophuthatswana division of the High Court of South Africa.^[1] She served acting stints on the Labour Court, Labour Appeal Court, and, in 2005, the Supreme Court of Appeal.^[1] She also chaired the Rules Board.^[3]

In 2006, Nkabinde was appointed to the Constitutional Court of South Africa by then President Thabo Mbeki to replace Arthur Chaskalson.^[1][4] Her appointment proved controversial, since, despite being "relatively obscure" and lacking experience in constitutional law, she was preferred to Wits law professor Cora Hoexter, who seemed the much stronger candidate.^[4] Nkabinde is known for her controversial judgments in S v Masiya, Lee v Minister of Correctional Services,^[5] and Botha v Rich,^[6] each of which has attracted severe criticism.^{[7][8][9][10][11]}

Hlophe controversy

In 2008, High Court judge John Hlophe allegedly approached Nkabinde and Chris Jafta to persuade them to find for President Jacob Zuma in pending litigation. The Constitutional Court laid a public complaint against Hlophe which Jafta and Nkabinde supported.^[12] Six years later, however, when the misconduct enquiry against Hlophe was pending, Jafta and Nkabinde brought a court challenge to the tribunal's jurisdiction, saying their own complaint was not legally valid.^[13] Commentators slammed Jafta and Nkabinde's "cowardice", which had brought the Constitutional Court into disrepute.^[14] The judges claimed, in response, that they were simply upholding the Constitution.^[15] The High Court dismissed the judges' application on 26 September 2014,^[16] but they appealed.^[17] The Supreme Court of Appeal dismissed that appeal in March 2016, criticising Jafta and Nkabinde's damaging court application and implying that the case raised questions about their "integrity".^[18] On 6 April 2016, Jafta and Nkabinde filed an appeal to the Constitutional Court – their own court – asking it to overturn the Supreme Court of Appeal's judgment.^[19] They did so partly on the basis that the SCA made "hurtful" imputations about them. All this was despite the fact, as one commentator noted, that the Constitutional Court already held in 2012 that it cannot hear appeals in the Hlophe matter and that any SCA judgment is final.^[20][21]

Personal life

Nkabinde is married and has four children. Kabelo Dubazana ^[1]

References

1. "Justice Bess Nkabinde". Constitutional Court of South Africa. Retrieved 2008-11-09.
2. "Bess Nkabinde-Mmono". whoswho.co.za. Retrieved 2016-04-07.
3. Nkabinde, Bess (October 2005). "JSC interview". www.constitutionalcourt.org.za.
4. Myburgh, James (29 August 2008). "The great Constitutional Court mystery". www.politicsweb.co.za. Retrieved 2016-04-07.
5. "Lee v Minister of Correctional Services (CCT 20/12) [2012] ZACC 30; 2013 (2) BCLR 129 (CC); 2013 (2) SA 144 (CC); 2013 (1) SACR 213 (CC) (11 December 2012)". www.saflii.org. Retrieved 2016-04-07.
6. "Botha and Another v Rich N.O. and Others (CCT 89/13) [2014] ZACC 11; 2014 (4) SA 124 (CC); 2014 (7) BCLR 741 (CC) (17 April 2014)". www.saflii.org. Retrieved 2016-04-07.
7. Phelps, K; Kazee, S (2007). "The Constitutional Court gets anal about rape – gender neutrality and the principle of legality in Masiya v DPP". South African Journal of Criminal Justice. 20.
8. Woolman, Stu (2007). "The Amazing, Vanishing Bill of Rights". South African Law Journal. 124.
9. Fagan, Anton (2013). "Causation in the Constitutional Court: Lee v Minister of Correctional Services" (PDF). Constitutional Court Review. 5.
10. Bhana, Deeksha; Meerkotter, Anmari (2015). "The impact of the Constitution on the common law of contract : Botha v Rich NO". South African Law Journal. 132.
11. Wallis, Malcolm (17 September 2015). "COMMERCIAL CERTAINTY AND CONSTITUTIONALISM: ARE THEY COMPATIBLE?" (PDF).
12. Smook, Ella (13 October 2008). "Judge Jafta pulls ConCourt application". IOL.
13. SAPA (21 October 2013). "Judges file Hlophe review application". IOL.
14. Mackaiser, Eusebius (7 October 2013). "Shame on those two Concourt judges". IOL.
15. Hawker, Dianne (21 October 2013). "Nkabinde and Jafta: We are fighting for the Constitution". eNCA.
16. Nkabinde and Another v Judicial Service Commission and Others [2014] ZAGPJHC 217; 2015 (1) SA 279 (GJ).
17. Tolsi, Niren (6 October 2014). "Hlophe 'misconduct': Jafta, Nkabinde stall matter". News24. City Press.
18. "Nkabinde and Another v Judicial Service Commission and Others (20857/2014) [2016] ZASCA 12". SAFLII. 10 March 2016.
19. Affairs, SABC News and Current. "HLOPHE CONCOURT". iono.fm. Retrieved 2016-04-07.
20. "Hlophe v Premier of the Western Cape Province". SAFLII. 30 March 2012.
21. "Two Constitutional Court justices take case on appeal to own court". Business Day Live. Retrieved 2016-04-10.