Capacity: Judge
Appointed to the Supreme Court of Appeal: 2014
Further appointments: Chairperson of Electoral Court
First appointed as a judge: 01-10-2004 to South Guateng
Key judgments: (1) Jacobs (in re the farm Uap) v Department of Land Affairs and Jacobs (in re Erf 38) v Department of Land Affairs (1284/16) and (982/2017) ZASCA 122 (26 September 2019) ; (2) Atlantic Beach Homeowners Association NPC and Others v Estate Agency Affairs Board (978/2018) [2019] ZASCA 112 (16 September 2019) ; (3) Freedom Front Plus v Electoral Commission of South Africa and Another (005/2019) [2019] ZAEC 1 (14 May 2019)
Gender: Male
Ethnicity: African
Candidate Bio:
When not immersed in the cut-and-thrust of legal arguments in court, Mbha appears to have a strong interest in another kind of duelling — that of the boxing ring. A judge of the Supreme Court of Appeal (SCA) since 2014, he has also served as South Africa’s representative to the International Boxing Organisation from 2002-2003 and Vice-President of the World Boxing Association from 1995-1998.
In 2012 the governing body of Rivonia Primary School objected to the head of the Gauteng education department ordering the school to enrol a Grade One learner since it contravened its admissions policy limits.
The dispute went to the South Gauteng High Court where Mbha held that the governing body did not have unqualified power to determine a public school’s admission policy and that the provincial education department was the ultimate decision-maker on setting schools’ admission policies.
“Leaving schools to determine their admission policy, including the power to determine their capacity, and subject only to appeals in individual cases, one unwittingly creates space privileged schools can use, and manipulate that power to fortify rather than dismantle existing inequalities,” Mbha wrote.
His decision was overturned by the SCA in 2013, but the Constitutional Court then reversed the appellate court’s decision. The apex court found that the head of department did have powers to over-ride the governing body’s decision but that, in this instance, that power had not been used in a procedurally fair manner.
Mbha’s ruling did draw the ire of former University of Free State Chancellor, Jonathan Jansen in his weekly Times column. Writing in 2011, Jansen opined that Mbha’s judgment made “no sense to me”. He criticised judgment for making a tenuous and “lengthy diatribe against the protection of white privilege”. Jansen also asserted that classroom size should be determined by schools and accused Mbha of siding with “politicians and the bureaucrats to make sure no schools work rather than protect the few that do”.
Mbha has acted at the Constitutional Court in 2016 and 2017, hearing 17 cases. In that period he wrote one unanimous leading judgment and one separate concurring judgment. He seemed not to have impressed the Judicial Service Commission (JSC), and commissioner Julius Malema of the Economic Freedom Fighters especially, when unsuccessfully interviewing for a position at that court in 2017. (See interview synopsis below).
During the interview he did confide in the JSC that his decision in Laubscher NO v Duplan and Another had kept him “awake at night”.
The unanimous judgment, Laubscher NO v Duplan and Another, concerned the inheritance rights of unmarried same-sex partners in a permanent relationship where both partners have undertaken reciprocal duties of support and the deceased did not leave a will. The applicant, the brother of the deceased, had argued that the promulgation of the Civil Union Act in 2006 had effectively repealed a previous Constitutional Court judgment, Gory v Klover, which had protected the inheritance rights of same-sex partners who were unmarried.
The appeal was dismissed but Mbha’s judgment was criticised by Constitutional law expert Pierre de Vos in his blog, for entrenching a “moralistic” and narrow view on marriages. De Vos argued that Mbha’s judgment did not address the moralistic distinction made in a previous judgment by the court, Volks v Robinson, which had discriminated against unmarried people in long-term relationships. This apparent dereliction meant that while same-sex couples were protected on the inheritance issue after Mbha’s judgment, heterosexual couples were not. Interestingly, Judge Johann Froneman, in a separate concurring judgment, did take on the matter, concluding that Volks could not stand.
Mbha’s record does not immediately throw up cases dealing with mainstream political law-fare to affirm his suitability for the Electoral chairmanship position. But in the SCA matter of Moyo and Sonti v Minister of Justice (a consolidated appeal) he did note that “[o]ne of the purposes of the right to freedom of expression is to foster tolerance of competing political views and the manner in which they are expressed. In a democracy such as ours, we have to tolerate people who have different views, and we have to accept that those views might be expressed in ways we do not like.”
Mbha holds a BJuris from the University of Fort Hare and an LLB from Wits University. He obtained an LLM from the University of Johannesburg in 2010 and also holds advanced diplomas in labour law and tax practise from that institution.
After serving his articles Mbha worked as a professional assistant at a law-firm for four years before setting up BH Mbha Attorneys which he ran from 1990-2003. In 2003 he served as a senior military judge while spending two years acting in the Gauteng Division of the High Court, to which he was permanently appointed in 2004. He was the alternate chairperson of the Court of Military Appeals from 2007-2014. Mbha acted for two years at the SCA before his permanent appointment in 2014.
October 2018 Interview
October 2018 Interview Synopsis
Supreme Court of Appeal (SCA) Judge Boissie Mbha was quizzed early on in his thirty-minute interview about his writing the unanimous Constitutional Court ruling, Laubscher NO v Duplan and Another.
Responding to a question about why he had referred to same-sex civil unions as “marriage” within quotation marks in the judgment, he told the Judicial Service Commission (JSC) “it was never my intention to demean same-sex marriage”.
On criticism by Constitutional law expert Pierre de Vos, who accused the judge in his blog of entrenching a “moralistic” and narrow view on marriages, Mbha said he had “read the criticism, which I appreciated because I always maintain that our judgments must be open to public scrutiny”, but that the “issue at hand did not ask me to deviate from the question of intestate succession”.
De Vos had argued that Mbha’s judgment did not address the moralistic distinction made in a previous judgment by the court, Volks v Robinson, which had discriminated against unmarried people in long-term relationships. This apparent dereliction meant that while same-sex couples were protected on the inheritance issue after Mbha’s judgment, heterosexual couples were not.
Michael Masutha, the justice minister, asked Mbha what preparations he would undertake, if appointed, in anticipation of the upcoming national elections in 2019.
The appellate court judge said he would call a meeting of the other members of the court before meeting with the chairperson of the Electoral Commission to ensure that everyone was ready.
Mbha identified electoral court matters being heard in the major urban centres, rather than “where the people are” as one stumbling block to access to justice linked to the electoral processes. He suggested appointing acting judges to the Electoral court during election periods as a panacea.
April 2017 Interview
April 2017 Interview Synopsis:
A chancellor at the Ethiopian Episcopal Church, Supreme Court of Appeal Court (SCA) Judge Boissie Mbha drew laughter at the beginning of his interview when he referred to acting SCA president Mandisa Maya as “acting head of the church”.
He was quickly corrected by Chief Justice Mogoeng Mogoeng, whose previous question related to the fractious racial atmosphere at the SCA — revealed during acting SCA president Mandisa Maya’s interview for her permanent appointment — which has become the plat du jour for the commission to feast on when candidates from the appellate court have settled into the interviewee’s seat.
Mbha confirmed that “white judges sit at one end of the table [in the SCA tearoom], black judges on the other… I would sit anywhere.”
Commissioner Thandi Modise, the ANC representative from the National Council of Provinces, asked Mbha if there were any cases which had led him to “stay awake at night?”
The judge said that “one aspect that was troubling me… was whether to veer into a particular area of marriage” in relation to the Laubscher NO v Duplan and Another Constitutional Court judgment he had handed down while acting there (see Mbha profile above). He later restated why he had not “veered” into grappling with the distinction made in a previous judgment by the court, Volks v Robinson, which had discriminated against unmarried people in long-term relationships when questioned by attorney Sifiso Msomi, who is one of four presidential appointments to the JSC, about media criticism of the judgment.
Mbha told the commission that he did not believe judges should address public events on “general social issues” and should rather speak through their judgments.
He was asked to explain his understanding of the separation of powers doctrine and later his definitions of “government” and “state”. Mbha said the state included the “government, the country and its people” while “government is about governance”. When pushed on his answer, Mbha stood by it, insisting to commissioner Julius Malema of the Economic Freedom Fighters, that “I have answered your question.” This led Malema to sneeringly end his questioning with: “Thank you, a judge of the Supreme Court of Appeal.”
