Further appointments: Deputy Judge President of Gauteng (2013)
First appointed as a judge: 2005, (Gauteng, Pretoria)
Date of Birth: 9 October 1962
- Amcu And Others v Royal Bafokeng Platinum Ltd And Others 2020 (3) SA 1 (CC)
- Moyo And Another v Minister Of Police And Others 2020 (1) SACR 373 (CC)
- Gupta V Knoop No And Others 2020 (4) SA 218 (GP)
- Patel v National Director Of Public Prosecutions And Others 2018 (2) SACR 420 (KZD)
Since his appointment to the Bench in 2005, Aubrey Ledwaba, the deputy judge president of the Gauteng Division of the High Court sitting in Pretoria, has adjudicated a wide range of matters which reflects the messy, fractured nature of South Africa.
These have included murder cases with racial undertones that have divided a community, and a country. Judges laying damages claims for malicious prosecution against members of the National Prosecuting Authority (NPA) who appeared to be acting in the interests of factions within the governing ANC aligned to former president Jacob Zuma. Rulings on the constitutionality of apartheid-era legislation that still lingers in South Africa’s democratic dispensation.
Currently acting at the Supreme Court of Appeal (SCA) since 2019, Ledwaba wrote the majority judgment in the successful appeal by Pieter Doorewaard and Phillip Schutte who the North West High Court found guilty of murdering 15-year-old Matlhomola Moshoeu in Coligny in 2017.
Moshoeu was accused by the two men of stealing sunflowers from a farm and the case ignited racial fires in the one-street North West town, and across South Africa. Doorewaard and Schutte were found guilty of murder, kidnapping, theft, and pointing a firearm by Judge Ronald Hendricks and sentenced to, respectively, 18 and 23 years imprisonment.
Ledwaba found that there were two mutually destructive versions of the victim’s death: the state alleged Moshoeu had been beaten and thrown from the back of a moving van while the accused claimed he must have jumped. They also denied being in the presence of the state’s sole witness, Bonakele Pakisi, when the incident was alleged to have happened.
Ledwaba analysed several inconsistencies in the evidence, including that the vehicle tested for blood samples by the police was not the one identified by Pakisi as the bakkie that was driven by the appellants when the incident was alleged to have occurred.
The test results for human blood in the loading bin of the vehicle tested were negative. The negative blood tests, according to Ledwaba, “cast serious doubt on the testimony and credibility of Mr Pakisi, who is a single witness” and had told the high court that Moshoeu had been bleeding profusely.
Pakisi had stated on affidavit that he had seen Moshoeu thrown from the vehicle three times but, during testimony, “he said that he saw the boy being thrown from the bakkie once, and that he was not sure about the other two incidents.”
Ledwaba disagreed with the trial court that this discrepancy was not material: “[S]ave for the evidence of Mr Pakisi, there was no direct or satisfactory evidence that the boy was thrown from the bakkie. In my view, there are material discrepancies in the evidence of Mr Pakisi. He is a single witness and there is no corroboration to his evidence.”
He further found that the appellants’ testimony and evidence relating to the time of cellular telephone calls made, which also confirmed the distances travelled by Doorewaard and Schutte was to be preferred to Pakisi’s testimony.
Ledwaba held that the state had not proved its case beyond reasonable doubt and that the appellants should be acquitted. Acting Judge Mahube Molemela agreed that the convictions should be set aside, but found that the first appellant should have been convicted of culpable homicide. Judge Nathan Ponnan wrote a judgment concurring with Ledwaba and disagreeing with Molemela’s conclusion on the conviction for culpable homicide. The appeal was upheld.
The 2018 high court matter of Patel v National Director of Public Prosecutions and Others highlighted the extent to which the dirty tricks in the political sphere which had been normalised during Zuma’s tenure as president, had infiltrated the judiciary and the criminal justice system.
In 2013, Lindiwe Nxele, a clerk in the KwaZulu-Natal High Court, accused the division’s then Judge President, Chiman Patel, of crimen injuria following a dispute about stationery in the judge’s chambers. Patel had, during the argument, called Nxele “nonsense, trash, rubbish and useless” she alleged.
Summons were served on Patel, a practising Hindu, on Diwali, a major religious occasion in that faith, which the judge president claimed was timed to publicly humiliate him. The NPA then withdrew the charges on the morning the criminal trial was to start. Patel subsequently sued the prosecuting authority’s national and provincial heads for R3-million in damages.
On the background dispute, Ledwaba noted that “emotions were running high” during the argument, the context of the use of the word “rubbish” was in dispute and that in a diverse country like South Africa “there is always scope for misunderstanding and misinterpreting language”.
“I do think that [Patel’s] questioning of Ms Nxele’s ability to speak English was unwarranted, in that it unnecessarily called into question her competence and ability to do her work,” Ledwaba said.
Ledwaba found contradictions in the evidence of the witnesses, and after considering the applicable law, he evaluated the evidence and found discrepancies in Nxele’s testimony. In particular Nxele had insisted in court that Patel’s utterances had impaired her dignity yet she had told the prosecution team that these words did not impact in her dignity.
Noting that provincial director of public prosecutions, Moipone Noko — who is considered close to Zuma and then acting national director of public prosecutions Nomgcobo Jiba — had pursued the prosecution of Patel, Ledwaba held: “[Advocate] Noko insisted that Ms Nxele wanted the matter to go to court but Ms Nxele testified that she wanted to have a face-to-face discussion with the plaintiff… In my view [Advocate] Noko should have considered this aspect before taking a decision to prosecute. It is not surprising that there are material contradictions in the versions of Ms Nxele.”
Ledwaba found that considering the evidence that was before Jiba and Noko when the decision to prosecute was taken, “there must have been considerable doubt with regard to the version and understanding of Ms Nxele with regard to what was said.”
Jiba and Noko had to have been satisfied that Nxele’s evidence, as a single witness, would be satisfactory in all material aspects before pursuing prosecution said Ledwaba. However, “there would clearly have been doubt” about the strength of that evidence, which would raise doubts about whether there was reasonable and probable cause to prosecute. The claim was successful and Patel was awarded R900 000 in damages.
Ledwaba was promoted to Deputy Judge President of the North Gauteng High Court in 2013 and acted at the Constitutional Court from February to May 2019.
During that stint he wrote the majority judgment in Moyo and Another v Minister of Police and Sonti and Another v Minister of Police, which was a consolidated challenge to sections of the Intimidation Act.
The first application sought to overturn a decision of the SCA and have Section 1(1)(b) of the Act declared invalid. The second application was for confirmation of an order of the SCA declaring Section 1(2) of the Act invalid.
Writing for a unanimous court, Ledwaba found that Section 1(1)(b) aimed to criminalise conduct and expressive acts which violated the rights to dignity, personal freedom and security.
“Intimidatory conduct that negates these rights has no place in an open and democratic society that promotes democratic values, social justice and fundamental human rights.” It was however, necessary, for rights of dignity and security to be balanced with the right to freedom of expression, Ledwaba held.
Regarding the challenge to Section 1(2), which provided that the onus of proving the existence of a “lawful reason” fell on the accused, Ledwaba held that the subsection clearly “absolves the state from proving all the elements of the crime … This is an obvious and impermissible infringement of the right to be presumed innocent, to remain silent and the right not to be compelled to give self-incriminating evidence.”
Ledwaba also disagreed with the SCA’s finding that the subsection only created an evidentiary burden: “The text of the section refers to ‘the onus of proving the existence of a lawful reason as contemplated in that subsection shall be upon the accused’. It is unclear how this can be interpreted in any way other than creating a reverse onus by absolving the state from proving an element of the crime. In so doing, the section allows for an accused to be convicted in circumstances where there exists a reasonable doubt as to the unlawfulness of their conduct.”
Regarding the challenge to Section 1(1)(b), Ledwaba identified the central issue as being whether the subsection unjustifiably criminalised expressive conduct that is protected by the Constitution’s freedom of expression clause.
While the subsection appeared unconstitutional on a literal reading, the question was whether it could be interpreted in a manner consistent with the Constitution, as had been held by the SCA.
According to the SCA’s interpretation intimidation would only occur where there was incitement of imminent violence or hate speech.
Ledwaba found this reading “does not equate with the ‘incitement of imminent violence’ under s 16(2)(b) of the Constitution. This is not the same as intimidation because (a) intimidation may incite harm that is distinct from violence (particularly with regard to property); and (b) intimidation may not ‘incite’ any violence or harm because incitement assumes the participation or presence of a third party. Instead, intimidation can threaten violence by the intimidator, without inciting a third party to cause imminent harm. … The difficulty with the imminent-harm qualification is that it appears neither in the text nor context of the Act.”
Both the impugned sections were held to be constitutionally invalid.
The North Gauteng High Court has a practise of attributing panel decisions to “the court” rather than the individual judge who penned the judgment. In Ledwaba’s case, this included the important 2016 judgment in Democratic Alliance v Acting National Director of Public Prosecutions and Others. The ruling set aside then acting NDPP Mokotedi Mpshe’s 2009 decision to drop criminal charges against Zuma — paving the way for him to become president of South Africa — and was confirmed by the SCA.
He was also part of the high court bench which dismissed Economic Freedom Fighters leader Julius Malema attempts to have sections of the Riotous Assemblies Act declared invalid in 2019
The current chairperson of the Magistrates’ Commission, Ledwaba has been an active administrator within the legal sector, including being a member of the Judiciary Case Flow Management Committee (2013-present), chairperson of the Interpreters Incapacitation Committee (2014-16) and a member of the International Association of Refugee Law Judges (2009-present).
Ledwaba holds a BProc from the University of Limpopo which he obtained in 1984. He worked as a state prosecutor before serving his articles and eventual set up his own firm of attorneys which he ran for almost two decades prior to his appointment to the Gauteng High Court in 2005.
April 2021 Interview: