Justice Leona Valerie Theron
“The Constitutional Court is an instrument and symbol of our democracy. It is the defender and protector of the Constitution. The Constitution is the supreme law of the country and binds all legislative, executive, and judicial organs of state at all levels of government.”
Justice Leona Theron is known for her support of women’s rights and other historically disadvantaged groups. From a poor, segregated township in South Africa to the highest court in the land, Justice Theron’s rise from humble beginnings has been described as nothing short of spectacular – an achievement against all odds.
Early Life and Career
Leona Valerie Theron was born on 7 November 1966 in Wentworth (Durban), KwaZulu-Natal. During apartheid, Wentworth was designated as a disadvantaged “coloured” area. It was in this environment that Theron learnt the value of hard work. To pay for her schooling and music lessons, her mother started making and selling coconut ice and fudge. Theron eventually ran the business herself.
Theron attended the University of Natal from 1984 to 1988, where she completed a Bachelor of Arts and a Bachelor of Laws. She applied herself assiduously to her studies while continuing to work hard to support herself. In the evenings she worked as a library assistant, and on the weekends as a retail cashier. She also tutored students and worked outside of term. She attributes her drive, work ethic and determination to her upbringing and the support of her family.
In 1989, recognition of Theron’s outstanding academic achievement and leadership skills came in the form of a prestigious Fulbright Scholarship to study in the United States. She subsequently obtained a Master of Laws degree from Georgetown University in Washington DC in 1990. During that time, she also worked for the International Labour Organization in Washington DC as well as a firm of attorneys in Los Angeles.
When I initially entered the profession, I always felt that I had to work twice as hard to gain the respect of my male colleagues.
Leona Theron
Justice of the Constitutional Court
On her return to South Africa in 1990, Theron practised as an advocate and lectured at the University of Natal. In 1994, she left practice for four months to assist in the administration of the historic first democratic elections in South Africa. In 1995 President Mandela appointed Theron to the Judge White Commission, established to investigate irregularities in the administration of former TBVC states (the formerly independent states of Transkei, Bophuthatswana, Venda and Ciskei). The aim was to create an integrated and unified civil service for the new democratic South Africa.
On 15 October 1999 Theron was appointed as a Judge of the High Court. At the age of 32 she was the youngest judge in the country, and was the first black female judge to be appointed in KwaZulu-Natal. After serving as a High Court Judge for 11 years, Theron was appointed as a Judge of the Supreme Court of Appeal – the youngest member at the time.
I think at the Supreme Court of Appeal and at the High Court, there needs to be an enabling environment. And we as judges need to be educated about that. And yes, people who come in are bound to make mistakes … Even senior judges make mistakes … I make mistakes … We are not infallible. But it’s how we treat the mistakes that people make that shows whether we build them up, or break them down. And it’s not only the people that we affect – it’s the institutions as well. Because the people serve in the institution, so if we’re building up the people, we’re building up our institutions.
Leona Theron
Justice of the Constitutional Court
Theron is celebrated for her activism. She was a founding member of the South African Chapter of the International Association of Women Judges (SAC-IAWJ), an organisation of women judges that promotes the rule of law and equal justice for women.
I believe in the saying ‘Umuntu ngumuntu ngabantu’. I am where I am because of people who assisted me. And the least I can do in return is to assist others. And that is why I’m passionate about getting involved in organisations that empower, particularly our youth and women
Leona Theron
Justice of the Constitutional Court
Over the years, Theron has received numerous awards for her contribution to the development of justice in South Africa. These include the Department of Justice Woman Achiever Award in 2000 and the 2014 KZN Business Women’s Association Life Achievement Award. In 2019 the Community of Wentworth presented her with the Key to the Community.
Appointment to the Constitutional Court
On 1 July 2017, Theron was appointed to the Constitutional Court of South Africa by President Jacob Zuma, replacing retiring Justice Johann van der Westhuizen. Since her appointment, Theron has written several seminal judgments which have significantly advanced South Africa’s legal landscape and have had real-world impact for its citizens.
As part of our oath of office, judges promise to uphold and protect the Constitution and the human rights entrenched in it, and to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. In being true to our office, we can help shape a better South Africa. A South Africa that lives up to the rights, ideals, and values enshrined in our Constitution.
Leona Theron
Justice of the Constitutional Court
In addition to the committed role Theron plays as a judge of the Constitutional Court, she remains dedicated to her not-for-profit and broader community engagements.
Judgments of Interest
Rustenburg Platinum Mine v South African Equity Workers Association obo Meyer Bester and Others (2018)
Meyer Bester, who was represented by the South African Equity Workers Association (SAEWA), a registered trade union, was an employee of Rustenburg Platinum Mine. In April 2013, Bester attempted to raise a parking issue with the mine’s chief safety officer, Ben Sedumedi. His attempts were ignored, which led to an escalation of the issue when Bester pointed his finger at Sedumedi, said in a loud voice “verwyder daardie swart man se voertuig” (“remove that black man’s vehicle”), and threatened to take the matter further by approaching management. Bester was charged with making racial remarks for referring to a fellow employee as a “swart man” (“black man”).
Bester was suspended and after being found guilty at a disciplinary hearing, he was dismissed. Bester approached the Council for Conciliation, Mediation and Arbitration (CCMA ) which found his dismissal substantively and procedurally unfair.
The matter eventually found its way to the Constitutional Court. The main issue to be decided in the Constitutional Court was whether referring to a fellow employee as a “swart man”, within the context of this case, was racist and derogatory, and whether it was unreasonable for the commissioner of the CCMA to have found that the use of the term was racially innocuous.
In a unanimous judgment penned by Justice Theron, the Constitutional Court held that the correct test was whether a reasonable, objective and informed person would, having the correct facts, perceive “swart man” to be racist and derogatory.
Justice Theron held that regarding the phrase as presumptively neutral fails to recognise the impact of the legacy of apartheid and racial segregation that has left South Africa with a racially charged present. This starting point carries the danger that the dominant, racist view of the past – of what is neutral, normal and acceptable – may skew an objective enquiry. By ignoring the reality of our past of institutionally entrenched racism, and by beginning the enquiry from a presumption that the context is neutral, sanitises the context in which the phrase “swart man” was used.
The past may have institutionalised and legitimised racism, but our Constitution constitutes a ‘radical and decisive break from that part of the past which is unacceptable’. Our Constitution rightly acknowledges that our past is one of deep societal divisions characterised by ‘strife, conflict, untold suffering and injustice’. Racism and racial prejudices have not disappeared overnight, and they stem, as demonstrated in our history, from a misconceived view that some are superior to others. These prejudices do not only manifest themselves with regard to race, but it can also be seen with reference to gender discrimination. In both instances, such prejudices are evident in the workplace where power relations have the ability ‘to create a work environment where the right to dignity of employees is impaired.’
justice Leona Theron
the Meyer Bester judgment, 17 May 2018
Buffalo City Metropolitan Municipality v Asla (2019)
In 2003, the Buffalo City Metropolitan Municipality recognised the need to address housing shortages in Duncan Village, and specifically in informal settlements in that area, including Reeston. Asla tendered for, and was appointed as an implementing agent, on a turnkey basis for a housing project to address the housing needs of Duncan Village. The Municipality accepted Asla’s tender and concluded a Turnkey Agreement with Asla. The Agreement required Asla to provide 3 000 housing units for the Duncan Village development. Later, the parties concluded a subsequent agreement for the engineering services and construction of housing top structures within Reeston (the Reeston Agreement). Asla then commenced work under the Reeston Agreement.
A dispute arose between the parties around the conclusion of the Reeston Agreement. When the Municipality failed to pay Asla for its work under the Reeston Agreement, Asla brought a case against the Municipality. In response, the Municipality approached the courts to review and set aside its decision relating to the Reeston Agreement. The Municipality argued that there ought to have been a separate tender and procurement process before the Reeston Agreement was concluded.
In the majority judgment by Justice Theron, the Court held that because of the manifestly unlawful nature of the Reeston Agreement, the Court was obliged to declare the contract unlawful. Asla’s scope of work had been expanded significantly without any proper tender process. The Court, therefore, made an order declaring the Reeston Agreement invalid, but did not set it aside completely as it wanted to preserve the rights that Asla might have been entitled to. This judgment means that the government cannot escape the consequences of patently unlawful and invalid contracts.
In awarding the Reeston contract to the respondent, the Municipality violated the provisions of section 217 of the Constitution. This section obliges every organ of state, regardless of the sphere under which it falls, to procure goods or services ‘in accordance with a system which is fair, equitable, transparent, competitive, and cost effective’. Corruption and maladministration are inconsistent with the rule of law and are the ‘antithesis of the open, accountable, democratic government required by the Constitution.’
Justice Leona Theron
the Buffalo City judgment, 16 April 2019
Family and Personal Life
Theron places great importance on her family life. She is married to an entrepreneur, Charles Sarjoo. Together they have four adult children, only one of whom has followed a career in law.
Theron and her husband are avid hikers. They have both climbed Mount Kilimanjaro, the highest mountain in Africa. She is planning to climb Russia’s Mount Elbrus in 2021, which is the highest mountain in Europe.
Theron loves music and still enjoys playing the piano and organ, the result of her childhood music lessons. She and her husband are also keen ballroom dancers. Theron is also an excellent baker and has recently taken to baking specialty birthday cakes for family and friends.
In the Words of Others
As her former mentor and colleague, Leona Theron has always acquitted herself with integrity and dignity. She was an industrious judge while in KZN and as a colleague, very good to work with.
Chiman Patel
former KZN Judge President
Working for Justice Theron was one of the most incredible experiences of my life. Not just because I got to learn from a woman who is truly a role model and mentor, but also because she made it fun, not something many associate with the experience of clerking. Justice Theron taught me the value of compromise, the necessity of sticking to your convictions (even if alone in them), and the wisdom of being able to laugh and enjoy your work.
Safura Abdool Karim
former law clerk to Justice Theron
Justice Theron embodies the values of our constitutional democracy and is a shining symbol of what we can be. Her passion for the constitutional project is infectious, and she leads by living up to her own exceptionally high standards of professional and ethical conduct.
Daniel Sive
former law clerk to Justice Theron
