Since 2015 attorney Sidwell Bongani Mngadi has spent several acting stints in the Gauteng and KwaZulu-Natal divisions of the high court. In that time he has adjudicated cases which have often gone to the heart of the debasement of public morality and institutions which South Africa has endured during former president Jacob Zuma’s tenure.
These included interdicting the Delangokubona Business Forum from entering building sites in KwaZulu-Natal. Apparently nothing more than a bunch of gangsters, the forum have been preaching a form of “radical economic transformation” which they say was inspired by Zuma and basically involves using violence to extort up to 40% of the work/ profits on any property development around Durban.
While acting in Gauteng, Mngadi ordered the South African Police Service to pay the legal fees of former Gauteng Hawks boss Shadrack Sibiya and Hawks investigator Leslie Maluleke in their case involving the alleged unlawful rendition of Zimbabwean nationals in 2010.
The case was one of several battlegrounds in which Zuma’s shadow state network, which included crime intelligence boss Richard Mdluli and former Hawks boss Berning Ntlemeza, were fighting against other factions within the police services which appeared opposed to Zuma’s erosion of the state security apparatus for his own personal needs.
While acting at the Pietermaritzburg seat of the KwaZulu-Natal high Court last year Mngadi had to grapple with what the idea of “land” means beyond merely a space to provide home and shelter or to be used for economic development.
A group of land claimants had erected structures on a piece of land on which they had filed a 1998 land claim — still not finalised — which the current owners wanted cleared. The owners sought confirmation of a rule nisi to interdict the respondents from building structures on and trespassing on its property. Respondents opposed the application on the grounds that the applicant had failed to proceed in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).
Mngadi noted the applicants’ historical links to the land, and their arguments that their ancestors graves remained on the land and their livestock still grazed, therefore they had set up temporary structures on self-allocated plots.
He held the view that the “metal sheet/timber structures were not abandoned but occupied” but on whether the respondents occupied the structures as their homes or not, Mngadi found: “The respondents although not necessarily well of, it was clear from their evidence that they would not occupy a one roomed metal sheet/timber structure with a degree of permanence as a home.”
“The applicant, on the totality of the evidence, has shown on the preponderance of probabilities that the respondents by 8 August 2016 had not occupied the applicant’s property as their homes. Consequently, the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act… are not applicable,” Mngadi found.
Finding that the current owners remained the legal occupants of the land, he ordered that the occupiers remove their structures within 30 days. The rule nisi was confirmed, with costs.
Sixty-year-old Mngadi has a Dip Juris (cum laude), Dip Legum, B.Proc and an LLB from the University of Zululand. He also has a diploma in tax practice from the University of Johannesburg.
A prosecutor in the former KwaZulu bantustan from 1981 Mngadi went on to practise as an attorney from 1991-2005. He then worked at Legal Aid South Africa as a justice centre executive for four years before returning to the sidebar.
April 2018 Interview Synopsis:
An attorney who seems to have made a latter-day career of acting for long stints at the high courts, Sidwell Mngadi was recommended for appointment to the KwaZulu-Natal high Court Bench by the Judicial Service Commission (JSC).
A rather generous recommendation since Mngadi had to be convinced that it would be a good idea if he gave up his membership of the ruling ANC if he were appointed — something he, apparently blind to questions regarding his impartiality it may raise, had argued against for a large part of his interview.
He then spent another large chunk of his interview arguing that he was in fact a “practising attorney” despite not having a fidelity fund account or having seen any clients for a few years.
Examples of dodgy judgment and inability to grasp a basic reading of the law and rules which does not augur well for his permanent appointment to the high court.
KwaZulu-Natal Deputy Judge President Mjabuliseni Madondo asked Mngadi about his legal experience dealing with customary law issues and his views on how it was catered for in the Constitution. He said using customary law contributed to transformation since it ensured access to the justice system for large sections of the rural population.
He later added that because many South Africans were poor and lived in rural areas the court procedures needed to be simplified and made “more user friendly” to ensure greater access to justice.
During a funnier moment in his interview he was asked about a debt counselling form attached to his application. He told the commission that one of the people who had written a letter of recommendation for him had faxed it through to him with the letter. Why Mngadi did not simply detach it when submitting his application form can be forgiven as an oversight although we do hope it is not an indication that he may be lacking in the fastidiousness and attention for detail so required of a judge.