Judge Thokozile Mbatha has been a judge at high court in Pietermaritzburg since 2011 and has spent acting stints at the Supreme Court of Appeal since 2016.
She is sure to face a stern test of her adjudication and sentencing skills by the Judicial Service Commission (JSC) — especially in connection with a case concerning 27 charges of theft, robbery with aggravating circumstances, murder and setting off explosives against ten men.
In S v Ngubane & Others, Mbatha dished out sentences ranging from five years to life sentences for the various crimes alleged despite the State not seeking convictions on many of the charges.
On appeal, a full KwaZulu-Natal High Court Bench found there was no “reliable evidence” before Mbatha “to sustain a conviction on any of the counts and the Appellants ought to have been acquitted.”
The full bench further noted that counsel for the state “confirmed that in the Court a quo he did not seek a conviction against the Appellants in respect of the counts set out in paragraph  supra. Notwithstanding this the learned Judge convicted the Appellants on those counts.”
Mbatha’s colleagues then tore into her judgment: “No reasons were given why she disagreed with the submissions and concessions made by the State. In fact the judgment did not record the concessions made by the State at all. They were ignored. In our view a Court declining to act in accordance with such concessions made by the State is duty bound to explain where the State erred. In this case this was not done. As a consequence, the First, Third, Fourth and Fifth Appellants were sentenced to three life terms of imprisonment in circumstances where the State had conceded that there was insufficient evidence against them. It is indeed so that the evidence presented in the Court a quo raises strong suspicions against the Appellants. However, it is trite that suspicions do not amount to proof beyond reasonable doubt.”
The appeal by the ten men was upheld and their convictions and sentences set aside, but the decision is likely to come back to haunt Mbatha in what appears a severe miscarriage of justice on her part.
Mbatha dissented from the majority judgment in a matter before the Supreme Court of Appeal last year which dealt with mineworkers who had contracted silicosis while working at AngloGold Ashanti.
The mineworkers had requested information from AngloGold through the Promotion of Access to Information Act. The company, citing a prospective class action suit in which it was involved, and where certification had been granted pending an appeal, refused to disclose the relevant information. Having lost in the high court, the mineworkers had appealed to the SCA.
In Mahaeeane and Another v AngloGold Ashanti Ltd, the majority found that the appellants did not require the information to formulate their claim and that the requested records did “not relate to the exercise of the right to claim damages but to the evaluation of whether the appellants should do so or not. The reasons given, therefore, do not meet the test of the records being required to ‘exercise or protect’ the right relied upon. …”
In her dissent, Mbatha was of the view that the appellants had met the criteria required in Section 50(1) of PAIA since they had met the procedural requirements of the Act and the record requested was required for the exercise or protection of their rights. She found the appeal should succeed, holding that the mineworkers had “no alternative source… save for the PAIA process to access their personal records from the employer.”
She was admitted as an attorney in 1987 and spent the majority of her career practising in Newcastle, KwaZulu-Natal.
Mbatha has been a member of the intellectual property committee of the Law Society of South Africa between 2005-10 and its insolvency committee from 2008-10. She served as vice-president of the KwaZulu-Natal Law Society from 2006-07 and as a member of the Electoral Court during the 1994 elections. Mbatha completed her B.Proc at the University of Zululand in 1983.
April 2018 Interview:
April 2018 Interview Synopsis:
The sentencing of an alleged gang of ATM bombers to life sentences, and then some, despite the state conceding it did not have a case strong enough for a conviction occupied much of Judge Thokozile Mbatha’s 27-minute interview before the Judicial Service Commission (JSC).
Commissioner CP Fourie, one of two lawyers representing the attorneys’ profession at the JSC led the cross-examination asking Mbatha whether she had recorded the state’s concessions in her judgment and why she had not given reasons for the hefty sentences. The appeal court in the matter found that “there was no reliable evidence before the Court a quo to sustain a conviction on any of the counts and the Appellants ought to have been acquitted. Counsel for the State has confirmed that in the Court a quo he did not seek a conviction against the Appellants in respect of the counts set out in paragraph supra. Notwithstanding this the learned Judge convicted the Appellants on those counts.”
Mbatha, describing the almost year-long matter as “not a clear-cut case” which was “based mainly in circumstantial evidence”, admitted that it was “maybe an oversight” on her part for not doing so.
She said the case had “lots of grey areas” and that she wanted it to go on appeal because of this. The full high court bench which heard the appeal was scathing of Mbatha’s earlier judgement as it overturned the ruling and sentences.
On the fractious atmosphere at the Supreme Court of Appeal, Mbatha said: “In simple terms, I felt there was some sort of gate-keeping process… You hear comments [like] ‘This one should not be here,’” she said.
Mbatha added that there was an intimidatory atmosphere when acting judges were allocated judgments to be written with “threats” that “judgments will be taken away from you”. She described one incident where it appeared that she was harassed several times for drafts by the presiding judge in a matter where she was the scribe.
“It was an intimidatory atmosphere which I found unsettling,” she told the commission.