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Judge Molahlehi

Profile:

Current Position: Judge at the Labour Court

Candidate bio:

The sixty-two-year-old Edwin Molahlehi has been a judge of the high court in Gauteng since 2017. Before that he spent almost a decade as judge of the Labour Court.

His judgment in the 2016 matter of Mtati v KPMG (Pty) Ltd was criticised in the article, “I resign with immediate effect!” published in Without Prejudice! in 2018.

This was an urgent application in which the applicant sought to interdict the respondent from proceeding with a disciplinary hearing after she had resigned.

Molahleli held that an employer had no power to discipline an employer once they have been resigned and that an employee could be disciplined while serving a period of notice before the termination of employment.

He found the applicant’s second letter of resignation changed the employment relationship by terminating the employment contract with immediate effect, which removed the respondent’s right to proceed with the disciplinary hearing. The disciplinary hearing was thus declared null and void, and set aside.

The Without Prejudice! 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.”

In Grootboom v National Prosecuting Authority & Another, the applicant was a prosecutor who was serving a suspension with pay and in the midst of a pre-dismissal hearing.

He applied for leave to study overseas but the NPA was only prepared to grant the leave if it was without pay, and did not authorise his absence. When Grootboom went overseas to study, he was notified by the NPA that he was considered away from work for over a month and dismissed in terms of the Public Service Act.

The minister upheld the prosecutor’s sacking and he sought a Labour Court review on the grounds that the NPA was biased and fired him for ulterior motives.

Molahlehi held it was trite law that during a suspension, an employee remains under the authority of the employer. He rejected the argument that the applicant had been granted sabbatical.

Considering the NPA’s refusal to reinstate the prosecutor as an administrative action, Molahleli dismissed the application because Grootboom had failed to make a strong enough argument when alleging case interference, bias, ulterior motive and bad faith.

An appeal to the Labour Appeal Court was unsuccessful, but the decision was overturned by the Constitutional Court in Grootboom v National Prosecuting Authority & another. The Constitutional Court held that the applicant had been absent because of his suspension, and therefore that he was absent with the permission of the employer. This meant that an essential requirement of section 17(5)(a)(i) of the Public Service Act had not been met.

Molahlehi obtained an LLB from Wits University and an LLM from the University of Georgetown in the United States. His career path includes being the executive mayor of the then-West Rand District, a director at the Commission for Conciliation and Mediation and Arbitration and a lecturer at Vista University.

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.