Advocate Bantubonke Tokota SC, spent approximately two years as a commissioner during retired judge Ian Farlam’s inquiry into the events that led to 44 deaths during an unprotected strike in Marikana in 2012.
During that entire time, he probably spoke about three times during the hearings. Tokota was to the Marikana Commission what Justice Clarence Thomas is to the United States Supreme Court: as silent as a night in the deep Karoo.
Working as an advocate, Tokota, who joined the Bar in 1995 and took silk in 2006, has been involved in several reported cases, including Hoerskool Ermelo v Head, Department of Education, Mpumalanga and Derby-Lewis v Minister of Correctional Services and Others.
One of the most interesting, and convoluted, involved the judiciary itself. He appeared for Constitutional Court justices Chris Jafta and Bess Nkabinde in their attempts to not avail themselves before a disciplinary judicial tribunal as key witnesses in the matter involving Western Cape High Court Judge President John Hlophe.
Hlophe was alleged to have improperly approached Jafta and Nkabinde in a 2008 matter before the Constitutional Court involving President Jacob Zuma. The alleged approach led to all the judges of the Constitutional Court laying a charge of gross misconduct against Hlophe. The disciplinary process has since then been a stop-start affair with bouts of litigation in between.
Both the High Court and the Supreme Court of Appeal had rejected Nkabinde and Jafta’s argument that the judicial tribunal was unconstitutional. The Constitutional Court had earlier rejected the duo’s application for a review of the previous judgments and the judges subsequently applied for a that order to be rescinded.
Since 2003, Tokota has acted several times in the Labour Court and the High Courts in the Eastern Cape and Gauteng.
While acting at the North Gauteng High Court, Tokota adjudicated the curious case of an alleged thief “frozen” in an industrial fridge, after the alleged theft of a single onion.
The incident had made the pages of the Daily Sun tabloid newspaper under the headline “Frozen for an Onion”. The owner of the fruit and vegetable market where the incident was alleged to have happened sued the Daily Sun and its reporter for defamation, arguing that they had got the facts wrong and had further implied that he was a “racist bigot”.
Tokota, noting that the story contained several irregularities, including that the alleged thief’s hair was frozen as a result of the incident, (while it was plain to see, as per the photograph taken by the reporter at the time, that he was, in fact, bald), found that the newspaper had defamed the plaintiff and ordered the former to pay out R80 000 plus costs of counsel.
Prior to obtaining a B.Juris from the University of Fort Hare (1980) and an LLB from Vista University (1995) Tokota has worked as an admin clerk and court interpreter. He has strong links with apartheid’s Homelands system, having served for short periods as the director-general in former Ciskei leader, Brigadier Oupa Gqoza’s, office and as Ciskei’s Minister of State Affairs. He has also previously served as a magistrate in the former Ciskei (1981-85) and the former Transkei (1985-89).
In the two years that Economic Freedom Fighters leader Julius Malema has sat on the Judicial Service Commission he has rarely back-pedalled in the face of answers by an interviewee.
So, Friday morning’s exchange with Advocate Bantubonke Tokota SC proved a novelty for him and regular commission watchers as the 64 year-old lawyer took him on with a firmness which, at times, seemed almost dismissive of Malema’s attempt to bludgeon him into a corner, or a concession.
Malema started with the Marikana Commission, where Tokota had served as a commissioner, and attempted to enquire as to the perception that the 34 miners killed by police on August 16 2012 had used muti, or African traditional medicine, believing they would be impervious to the police bullets.
Tokota refused to be drawn on the matter, stating several times that he did not believe in muti while noting that, much like believing in “the church” that different beliefs worked for different people.
Malema tried to push him by stating that Tokota had “signed a report that said workers acted because they were motivated by muti”. Tokota said “I don’t remember that” was one of the findings of the Marikana commission.
“So you sign things that you don’t remember?” asked Malema.
Tokota maintained that there were “a lot of allegations” around the events of the fatal strike which claimed 44 lives in total and maintained that none of the three Marikana commissioners believed in muti — and nor did they find that the miners had been motivated by muti.
When Malema tried to push Tokota on a judgment regarding a black man imprisoned in a freezer by a white man (see Profile above), and queried as to why the acting judge had not considered the racialised history and background of South African society in making his findings, Tokota was adamant that such background should have no bearing on his consideration of the evidence and his subsequent ruling. Tokota maintained that matter was a defamation case involving a newspaper and there was no need for Malema to “drive me to racism” in his findings.
Likewise, Tokota remained steadfast that there was nothing untoward about him working as a Bantustan magistrate in the former Transkei and Ciskei during apartheid.
“The law is the law,” Tokota maintained. “What do you expect me to do as a magistrate, go on strike?”
Advocate Dumisa Ntsebeza Sc then gently questioned Tokota on his record as a Bantustan magistrate. This allowed Tokota to show how he had maintained independent-mindedness, despite political pressure from government at the time.
Following these answers Tokota rather triumphantly stated to towards the end of a 35 minute interview which saw him successfully nominated for a position at the Eastern Cape Bench: “When I look at the facts you cannot politically manipulate me.”