Before her appointment to the bench in October 2010, she practiced as an advocate of the High Court in Johannesburg; she was involved in constitutional litigation, including through the Legal Resources Centre, and also served a stint in corporate advisory at Werksmans.
[1] She was a fellow at the Legal Resources Centre in Durban between 1991 and 1992, during which time she was also involved in Agenda, a prominent feminist journal – she was a member of its editorial board and wrote a regular column on "Judges and Gender".
[1] In 2005, she acted for the Lesbian and Gay Equality Project and 18 other applicants in the matters of Minister of Home Affairs v Fourie and Lesbian and Gay Equality Project v Minister of Home Affairs; the Constitutional Court's landmark ruling in that matter affirmed a constitutional right for same-sex couples to marry, leading to the passage of the Civil Union Act of 2006 the following year.
[1] She returned to practice at the Bar at the beginning of 2010, but within a month was appointed as an acting judge of the South Gauteng High Court.
[5] Other prominent matters heard by Kathree-Setiloane included Export Development Canada's challenge to the use by the controversial Gupta family of a private jet leased from StoneRiver;[6] a dispute between South African Airways and SA Airlink about debts owed by a company in business rescue;[2] a case on the status and contents of the national mining charter;[7] and the case which resulted in Supra Mahumapelo's reinstatement to his leadership position in the African National Congress (ANC).
[11] During that period, she wrote the Constitutional Court's unanimous judgement in S.O.S Support Public Broadcasting Coalition v South African Broadcasting Corporation, which concerned the Competition Commission's powers to investigate to a deal that gave MultiChoice exclusive rights to air content from the SABC's archive.
The first was the clerks' complaint, which at the time had not been heard by the Judicial Conduct Committee; Mandisa Maya had recused herself from Kathree-Setiloane's interview because of a possible conflict of interest in that regard.
[13] Justice Minister Michael Masutha also told Kathree-Setiloane that she came across as "overbearing" in her "tenor of voice" and "manner of speech".
[19] However, the non-profit Council for the Advancement of the South African Constitution (CASAC) laid a formal complaint against the Judicial Service Commission, accusing it of running an inappropriate interview process in respect of several of the candidates; among other things, CASAC said that Kathree-Setiloane had been "ambushed, required to answer false allegations and wilfully misinterpreted and thereafter unfairly attacked" during her interview, with "'temperament' and 'collegiality'... used with a peculiar and unique vehemence against Kathree-Setiloane".
[22] However, in December 2021, President Cyril Ramaphosa announced that he had selected Jody Kollapen and Rammaka Mathopo for the positions; Kathree-Setiloane was among the three nominees who were not appointed.
[27] In October 2023, Kathree-Setiloane appeared before the Judicial Service Commission again, this time to interview for one of four vacancies on the Supreme Court of Appeal.
[28] Observers viewed her as the frontrunner among the 10 candidates interviewed,[30][31][32][33] and the Judicial Service Commission recommended her and Shane Kgoele for appointment.