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Adv Mzungulu Roy Mthombeni

Capacity: Advocate
First admitted as advocate: April 2009
Previous admissions: 1989 (Attorney)
Gender: Male
Date of Birth: October 1958
Qualifications: B.Proc (UniZulu, 1982), LLB (UKZN, 1984) LLM (Uni. London, 1986) LLM (Columbia, 1987) PGDip. (UJ, 1994)

Key judgments:

Candidate Biography | Updated October 2023

To most people who have seen him on the road, Johannesburg Advocate Mzungulu ‘Roy’ Mthombeni is an avid cyclist who often enters races to raise money for charity.  Few ‘roadies’ would know that Mthombeni is a senior advocate and labour specialist with over 40 years in legal practice.

Mthombeni began his legal career as a candidate attorney at established labour law firm Chennels Albertyn Inc. but completed his articles of clerkship at the historic Cheadle, Thompson & Haysom Inc (1989. Upon his admission as an attorney, Mthombeni left legal practice for a life in academia. At the time, he held four law degrees including a B.Proc from the University of Zululand (obtained in 1982), an LLB from the University of Natal, now UKZN, 1984), an LLM from the University of London (1986) and an LLM from Columbia University of New York (1987).

Mthobeni was a senior legal researcher at the University of South Africa for a brief period before he joined Vista University’s Soweto campus as associate professor, lecturing commercial and labour law until 1996. In the role, he published two articles on labour law in international journals.

From 1997 he became senior commissioner with the Commission for Conciliation, Mediation and Arbitration (CCMA). Meanwhile, he was also with the Independent Mediation Service of SA and Tokiso Dispute Resolution Panel.

From 2000 Mthombeni did extensive training and facilitation work, while also serving as an arbitrator for bargaining councils in several industries including metals, chemicals, education, safety and local government. He also completed an arbitration certificate course and accreditation with the Arbitration Foundation of SA.

In 2011 Mthombeni was admitted as an advocate and took up membership of both the Johannesburg Bar (2012) and the KwaZulu-Natal Bar (2014).

He was nominated to serve on the disciplinary committee of the KZN Legal Practice Council in 2022.

From 2012 Mthombeni has held several stints as an acting judge of the Labour Court, where he wrote the judgment in Ockert v Legal Aid South Africa. In that case, an employee suffered from a mental health condition and informed the employer of the condition through submitting several medical certificates. However, the condition got worse, and the employee missed several days of work as a result. The employer considered this as misconduct, charged him, and summarily dismissed him after a disciplinary hearing. The employee filed an unfair dismissal claim on the grounds that the employer dismissed him for conduct relating to a medical condition he had disclosed. After the employee finished his evidence at the trial, the employer applied for absolution from the instance, arguing that the employee’s was insufficient to sustain his claim, which should also be dismissed.

After considering the evidence and law, Mthombeni denied the absolution. He found that the employee had enough evidence to prove that he suffered from a mental health condition, had informed his employer, was not accommodated, which led to his absence from work. He found that the conduct alleged to be misconduct was linked to his illness which had become a disability, and therefore it was a violation of the Employment Equity Act and an automatically unfair dismissal. He ordered the employee’s reinstatement, 6 months’ backpay, compensation and legal costs in favour of the employee.

While Mthombeni’s written judgments submitted with his application for permanent appointment to the Labour Court show a firm grasp of language, the JSC is unlikely to take kindly to the extended delays in delivering the judgments, which often go beyond the three months prescribed by the Judicial Norms and Standards. There may also be critiques to length of his judgments, which show academic prowess but are probably not entirely helpful to practitioners pressed for time.

Mthombeni is also five years shy of the mandatory retirement age for judges and would likely serve for less than the 15 years that qualifies judges for a lifetime pension. However, the JSC might look at his wideranging experience and weigh this consideration higher than age.

A member of the Black Lawyers’ Association since 1991, Mthombeni is also a member of Advocates for Transformation (since 2012) and the South African Society for Labour Law (SASLAW). True to his love for cycling, he is also a member of the Cyclist Specialists Club, a social club.

October 2023 Interview

Adv Mzungulu Mthombeni’s October 2023 interview for a position on the Labour Court was unsuccessful. He was not nominated for appointment.