Capacity: Advocate
Gender: Male
Ethnicity: Black
Date of Birth: August 1965
Qualifications: BA (Law)(1998) LLB (2000) LLM (2008)(Wits)
Candidate Bio (Updated September 2024)
Advocate Mkhabela’s occupational history reveals a storied past that talks to the ambition and fortune of everyday South Africans who find their way to esteemed, and exclusive, positions of public office. Throughout Mkhabela’s young life, he worked many of the most difficult jobs in South African society. As young as 12 years, Mkhabela worked as a farmer at Tekwane Tobacco Farm.
While attending Thembeka High School, Mkhabela was a golf caddy and gardener. At 16, he left school and worked as a miner at UK-owned Bulembu mine – then Havelock – one of the largest asbestos producers in the 1960s and 1970s. After an incident in which 8 of his colleagues and friends were killed by a falling rock, Mkhabela requested to move to the security department, becoming a guard.
Mkhabela began developing somewhat of a career in mining security, serving as a constable at Gold Fields mine from 1982 to 1989 and then as security at JCI mine until 1993. At this time, Mkhabela returned to Thembeka High School. Mkhabela was a worker and stock-controller at Cashbuild Building Supplies until 1995, leaving this job to attend the University of Witwatersrand to study his BA Law, majoring in philosophy.
Advocate Mkhabela would complete his BA in 1998, his LLB in 2000 and his LLM focusing on competition law in 2003, all at Wits. During his undergraduate studies, he tutored various courses and worked as an estate sales assistant at Zulu Properties. He was also a member of the Law Students Council and the Student Representative Council.
Upon graduating, Mkhabela began his legal career as a legal advisor at Mudzi Investments. He served pupillage in 2005, joining the Bar as an advocate and practicing since. Mkhabela was conferred Silk status in 2020 and is part of Group261, the oldest group of advocates at the Johannesburg Bar. Mkhabela has served various stints as an acting judge of the High Court since 2019, dealing mostly with civil and criminal law.
In Khulekani v S, Mkhabela heard an appeal in terms of section 65 of the Criminal Procedure Act (CPA) against a decision of the Boksburg Magistrates Court refusing to release on bail the four accused pending their trial. Section 65 provides that the High Court will not set aside the decision by a lower court that is being appealed against unless that decision was wrong.
Regarding onus, in the case that the offense falls within Schedule 5 the appellants must adduce evidence to satisfy the court that their release is in the interests of justice. The second and fourth appellants’ bail applications fell within this category and the Magistrates Court ruled that they had not discharged their onus, thus bail was denied.
As to the first and third appellants, by virtue of their bail applications falling under Schedule 1, the State had to prove on a balance of probability that the interests of justice do not permit their release on bail. The Magistrates Court denied their bail on the basis that they were flight risks as they had attempted to evade police and security. Mkhabela reasoned that:
To my mind a Court of law is entitled to refuse bail on the ground that an accused is a flight risk when there is cogent and uncontroversial evidence that an accused attempted to evade arrest or disobeyed an order to stop when directed to do so.
Advocate Mkhabela found that the Magistrates Court’s denial of bail to the second and fourth appellants was well-founded. He reasoned that, even if their bail applications fell within Schedule 1, it would not be in the interests of justice to release them as they had equally attempted to evade the police and security. The appeal was dismissed in terms of all four appellants.
In Nkowana v H J Bosch and Sons (Pty) Ltd Mkhabela was tasked with deciding whether the decision of the Magistrates’ Court in respect of liability is appealable. It was common cause that there was a motor vehicle collision between the appellant and a driver for the respondent. The Magistrates Court ruled that the appellant was liable for 100% of the respondent’s agreed and proven damages. Mkhabela referred to the test for appealability laid down in Zweni v Minister of Law and Order: the decision must be final in effect, the decision must have the effect of disposing of at least a substantial portion of the relief claimed and it must be definitive of the rights of the parties. Mkhabela added that the test for appealability is now in the interests of justice and no longer in Zweni.
Dealing with each of these, Advocate Mkhabela reasoned that the Magistrates Court is functus officio in respect of the judgment pertaining to the issue of liability and thus the decision was final in effect. The decision did dipose of a substantial portion of the relief claimed. However, Mhabela found that the decision was not definitive of the rights of the parties as the issue of quantum remained to be adjudicated. Thus not all the requirements in Zweni had been met.
Mkhabela went on to consider whether it would be in the interests of justice to allow the appealability of the Magistrates Court decision on liability. It was noted that the parties to the matter had already requested, and were granted by the Magistrates Court, an application to separate the issue of merits from that of quantum. As the issue of quantum had not yet been determined, the appellant’s attempt to appeal the decision on liability would be tantamount to piecemeal litigation. Mkhabela found that the interests of justice were not in favour of regarding the matter as an appealable decision. The appeal was thus struck from the rolls.
Advocate Mkhabela has a diverse employment history coupled with his 19 years of practice as an advocate. However, it will be interesting to see how important it is to the JSC that he has only acted for three terms.
October 2024 Interview:
October 2024 Interview Synopsis:
Advocate Mkhabela SC’s interview took up the last and shortest slot for the day of interviews. Chief Justice Maya started the interview describing Mkhabela’s history as “truly remarkable”, starting as a farm worker, then working at the mines and finally quitting so that he can return to school to complete his matric.
After taking Silk in 2020 he has run a general practise and continues to train and mentor pupils like he had done during his studies at Wits. He is a member of the Johannesburg Society of Advocates Sexual Harassment Committee which he explained “are trying to assist members who have been sexually harassed by co-members internally within the Bar Council.”
Despite having 43 weeks of acting experience of which four were done pro bono, the only point of contention arose through discussion of his reserved judgments. Advocate Mkhabela SC wrote 43 judgments in the High Court on various topics including commercial and civil matters, including 5 criminal trials that he presided over. CJ Maya pointed out that when his application was submitted there were 8 reserve judgments listed on his application, with the oldest going back to September 2023 exceeding the three month period prescribed. He noted that it was regrettable that they were late, one of the reasons for delay was because he was waiting for his co-judge in order to deliver them. He explained that all eight had been delivered by the day of his interview.
Judge President Mlambo continued this line of questioning and asked him to explain to the Commission what would change regarding his issue of having reserve judgments as it seems to have persisted throughout all of his acting stints. The change would be that he would no longer be juggling his practice with his acting stints explained Mkhabela. JP Mlambo pointed to the fact that was not making use of the researchers stationed at the court, whose help would speed up the rate at which he completed his judgment writing as they are a valuable resource to be relied on. Mkhabela admitted to not always relying on the researchers in the past but explained that he had started to rely on them during his 2024 acting stints.
Clarifying a point made during his answers to JP Mlambo, Judge President Tlaletsi asked Mkhabela if him not closing his practise during his acting stints meant that he was practicing while acting and whether this included court appearances. Adv Mkhabela SC clarified that he was not appearing in court, he was just dealing with drafting and reading in relation to his practise.
The interview ended with a heartfelt story from JP Mlambo who related to where Mkhabela started his career as his own father had started from a similar place in life.
Ultimately Advocate Mkhabela SC was successful in his interview.
October 2023 Interview:
October 2023 Interview Synopsis:
Advocate Mkhabela SC’s October 2023 interview for a position on the Gauteng High Court was unsuccessful. He was not nominated for appointment.
