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Judge Edwin Mogomotsi Molahlehi

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Judge Edwin Mogomotsi Molahlehi

Capacity: Judge
First Appointed as a Judge: Labour Court (2007)
Further Appointments: Gauteng High Court, Johannesburg (2017) Deputy Judge President Labour Court (2023), Judge President Labour Court (October 2024)
Gender: Male
Ethnicity: African
Date of Birth: October 1956
Qualifications: BA (Law)(1983)(Uni.Lesotho); LLB (1986)(Wits); LLM (1990)(Georgetown, USA)

Key Judgments:

Candidate Bio (updated September 2024):

Judge President Mogomotsi Edwin Molahlehi is a judge of the Gauteng Division of the High Court, Johannesburg and the Judge President of the Labour Court.

Before taking up a position as a judge of the Gauteng High Court, in 2017, Molahlehi spent almost a decade as judge of the Labour Court. He has returned to this court as the Deputy Judge President after his successful interview in October 2023.

After graduating with a BA(Law) degree from the National University of Lesotho in 1983, Molahlehi joined the anti-apartheid law firm Centre for Applied Legal Studies as a fellow. While at CALS, Molahlehi worked on labour cases by day, at night he carried a full study load to complete his LLB degree at Wits University in 1986. Later that year, he joined ‘Big 5’ law firm Bowman Gilfillan as a candidate attorney from 1986 to 1988.

He left South Africa in 1989 to complete his LLM degree at Geogetown University Law School in Washington DC, in the United States.

He returned to CALS in 1990 as a research officer and director of its Community Dispute Resolution Trust. At the same time, when townships across the Witwatersrand were a hotbed for violence, he served as a mediator, facilitator and trainer with the National Peace Accord.

From 2000 to 2003 he served as the director of the Department of Labour’s Employment Conditions Commission and in 2001 held his first stint as an acting judge in the Labour Court.

However, he was be drawn to politics and government administration, becoming the first Executive Mayor of the new West Rand District municipality, which covered his hometown of Kagiso in Krugersdorp.

He left politics in 2003 to take up a string of positions in the labour dispute resolution space. He served as director of the Commission for Conciliation, Mediation and Arbitration (CCMA); a mediator on the Tokiso Dispute Resolution Panel and the Independent Mediation Service of SA; chairperson of the Public Service Bargaining Council; and a board member of Legal Aid South Africa.

Molahlehi was appointed a judge of the Labour Court in 2007. As a judge, he wrote several judgments spanning the entirety of labour law. This includes the judgment in Mtati v KPMG (Pty) Ltd, an urgent application in which the applicant, Ms Mtati, sought to interdict the respondent, accounting firm KPMG, from proceeding with a disciplinary hearing after she had resigned. Molahleli held that an employee could be disciplined while serving a period of notice before the termination of employment, however, an employer had no power to discipline an employee once they have resigned. He therefore declared KPMG’s disciplinary hearing null and void.

Molahlehi’s judgment in Mtati v KPMG was criticised in a 2018 article titled “I resign with immediate effect!” in the law magazine Without Prejudice. The article argued that Molahlehi had misunderstood the legal principles related to resignation: “It is not sufficient for the employee to resign; he or she must also observe the notice period as agreed in the contract of employment, unless the employer agrees to waive its right to the notice period.”

Prior to the amendment of the Labour Relations Act, Labour Court judges served a non-renewable term of 10 years in that court. Therefore, when Molahlehi’s term was nearing its end, he applied and was appointed as a judge of the Gauteng High Court in 2017.

While at the High Court, Molahlehi dealt with a wide span of legal disputes involving corporate giants like telecoms company Vodacom (in Vodacom v National Commissioner: SAPS), and political giants like the president and secretary general of the African National Congress (in Magashule v Ramaphosa). However, most people would be familiar with Molahlehi as the presiding judge in the Afriforum v Economic Freedom Fighters case heard in the Equality Court. The case dealt with the question of whether the song Dubul’ iBhunu, which had the lyrics ‘Dubul’ iBhunu (‘Shoot the boer’) and ‘Ayasab’ amagwala’ (‘the cowards are scared’), constitutes hate speech in terms of the Equality Act (the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000)

The trial was broadcast live on national television and heard testimony from several witnesses including history expert Professor Liz Gunner, and Afriforum’s Ernst Roets who crumbled in the face of withering cross-examination. EFF leader Julius Malema also brought drama to the trial, including blowing kisses to Afriforum’s counsel. In the end, Molahlehi found that the case presented a tension between constitutionally protected freedom of speech and constitutionally banned hate speech. However, the history and context of the song being rooted in calls for land justice and economic transformation meant that it could not be classified as hate speech in terms of the Equality Act. Therefore, Afriforum’s case was dismissed.

With a wealth of experience in labour dispute resolution in government, the private sector and NGOs, coupled with real management experience as director and board member, Molahlehi seems suited to the position of Judge President. Further, Molahlehi has been acting Judge President since February 2024 of the Labour Court and Labour Appeal Court, as these are held as dual positions across the two courts. Interestingly, Molahlehi simultaneously holds the position of acting Deputy Judge President of the Labour Court and Labour Appeal Court, which he has been since March 2023.

While Molahlehi appears well placed to be appointed as Judge President, and is the only applicant for this position, his imminent retirement in 2026 raises questions as to the need to find a successor for the position of Judge President and Deputy Judge President.

October 2024 Interview:

October 2024 Interview Synopsis:

Deputy Judge President Molahlehi provided a unique answer when asked about his vision for the Labour Court in that he had already started implementing it. He had already started acting as the Judge President of the Court in February 2024 where he started putting his plans for the court in place.

He outlined the main challenges of the court to be a backlog of cases, a high number of delayed reserve judgments, issues with enrolment, delays in filling critical vacant posts in the court such as the registrar and issues with the facilities of the court specifically in Durban and Joburg. He went on to provide an explanation of what has been done at the Labour Court to tackle these challenges, including the roll out of case lines. A big issue for the Labour Court is access to courts, Molahlehi believes that more courts should be made available beyond the current four that are operational, with the main issue being the building used in Durban he has organised a new space for the court to run in.

Chief Justice Maya was curious how he created the position of chief registrar with the current budget restrictions. He explained that they have sacrificed filling the position of an interpreter because of the importance of a chief registrar. Molahlehi explained that it is a risk as they may need this position in the future, but he believes that it will assist the Labour Court and is thus a risk he is willing to take.

CJ Maya went on to endorse the GCB’s comment that the numerous judgments handed down by Molahlehi illustrate that he has an excellent knowledge of the law.

In relation to backlogs and the effect that this has on employees, employers and serious economic effects to the whole country, Judge Savage asked if rolling out court online would improve case management? Molahlehi confirmed that it would assist with these backlogs and it’s feature will also assist Judge President’s by having an overview of what is happening in their court.

On the very topical issue of reserved judgments, Mangena asked if he has a tool to deal with reserved judgments in their court? Molahlehi explained the system that he currently has in place to monitor and send reminders to Judges after specific periods of time pass.

Deputy Judge President Molahlehi was ultimately successful and will soon take his seat at the helm of the Labour and Labour Appeal Court.

October 2023 Interview:

October 2023 Interview Synopsis:

Judge Edwin Molahlehi’s October 2023 interview for the position of Deputy Judge President of the Labour Court and Labour Appeal Court was successful. He was nominated for appointment.

October 2016 Interview:

October 2016 Interview Synopsis:

Asked by Gauteng Judge President Dunstan Mlambo why he wanted to move from the Labour Court, Judge Molahlehi said he “always wanted to be involved in broader aspects of the law”.

Responding to a question about “judicial accountability” Molahlehi said judges were accountable to the Constitution, the litigants in matters being adjudicated, the judiciary’s hierarchy (from judges president all the way up to the chief justice) and to their colleagues on the Bench.

Asked by commissioner Jomo Nyambi about gender representation in the high courts, Molahlehi said there was still a lot required to ensure proper gender and race representation on the Bench.

He added that he was particularly concerned about the attrition rate of female acting judges leaving the high courts. He suggested that judges president think hard about how to address the “environment” that female judges were finding themselves in.

Asked about the connection between democracy and the rule of law, Molahlehi said the latter was the “cornerstone” of the former.