Capacity: Judge
First appointed as a judge: January 2022 (KwaZulu-Natal High Court, seconded to Land Claims Court)
Gender: Male
Ethnicity: African
Date of Birth: December 1957
Qualifications: B.Iuris (1983) LLB (1997) (UniZulu), PG.Dip (Environmental Law)(2002); LLM (2003) (UKZN)
Key Judgments:
- Mwelase v Director-General for the Department of Rural Development and Land Reform (107/2013) [2016] ZALCC 23; 2017 (4) SA 422 (LCC) (8 December 2016)
- Tshakuma Community Trust v Regional Land Claims Commissioner for Province of Limpopo (LCC194/2013) [2023] ZALCC 20 (11 July 2023)
- Aquarius Platinum (South Africa) Pty Ltd v Bonene (LCC200/2016) [2018] ZALCC 23 (15 June 2018)
- Makhuva-Mathebula Community v Regional Land Claims Commissioner Limpopo (LCC74/2004) [2017] ZALCC 6 (10 February 2017)
Candidate Biography (updated August 2024):
Judge Muzikawakhelwana Thomas Ncube is a judge of the KwaZulu-Natal High Court, seconded to the Land Claims Court.
A thorn among roses, Judge Ncube is the only male judge in the Land Claims Court dominated by women. However, this does not discount his candidacy for the top job of Deputy Judge President.
Ncube started his career as a court interpreter and later court clerk at the Mbumbulu Magistrates Court while studying for his B.Iuris law degree at the University of Zululand. He later became a district prosecutor. He served as a magistrate in the KwaZulu-Natal midlands for 29 years from June 1986 until the end of 2015 (including as a regional magistrate from 2014).
After serving initial stints as an acting judge of the Land Claims Court, from 2006 to 2011, Ncube enrolled for SAJEI’s Aspirant Judges’ Course in 2012. He continued acting in both the Land Claims Court and the Gauteng High Court since.
While an acting judge, he wrote the groundbreaking judgment in Mwelase, which ordered that the Minister of Land Reform appoint a special master to administer labour tenant claims, which had been neglected for several years. Labour tenants are former farmworkers who had been living on the farms they worked on (some for generations) but had insecure tenure on that land. The land claims process allowed them to claim rights to claim more secure rights to the land that they lived and worked on. However, the claims process was a bureaucratic nightmare, leaving many of the original claimants vulnerable, and several dying while waiting for their claims to be adjudicated. Ncube therefore fashioned a unique remedy that allowed a faster claims process and with some judicial oversight. The Mwelase judgment was upheld in the Constitutional Court.
Ncube’s judgment in Aquarius Platinum (SA) was also upheld on appeal in the Supreme Court of Appeal. That case concerned an eviction application of 171 occupiers from the Kroondal farm in term of the Extension of Security of Tenure Act 62 of 1997 (ESTA). Ncube found that such evictions, usually on rural land and involving farmworkers, require a two-stage process of firstly inquiring into whether there had been a valid termination of the land occupation, and secondly whether there is a valid notice of the landowner’s intention to obtain an eviction order. Ncube found that the employment relationship between the occupier and landowner is irrelevant in this process. The two-stage process was endorsed by the Supreme Court of Appeal.
Ncube has some experience with the administration and running of a court. He held several stints as the Acting Chief Magistrate and Judicial Head for Region 6 (KZN), comprising 32 magisterial districts from Durban and the KZN South Coast. This job involved case flow management, court supervision, quality assurance and preparing judicial circulars and notices, and more so in a largely rural setting. These would be attributes he would bring to the operations of the Land Court.
Like most magistrates, Ncube took up membership with the Judicial Officers Association of SA (JOASA) (1996 – 2013) and the Association of Regional Magistrates of SA (2014 – 2021). He is also a member of the Black Lawyers Association from 2015 to date (which would raise eyebrows, as judicial officers generally do not belong to organisations dominated by practicing lawyers).
While Ncube has written some groundbreaking judgments in the field of land law, his broader body of work as a judge is relatively thin, especially considering that he has served as both an acting and permanent judge for over 15 years. On a search of the electronic databases and law reports, it seems that Ncube has produced at least 4 reported judgments, and at least 5 of his judgments have been upheld on appeal, while two were overturned. While this record might be fair for a relatively junior judge, the JSC might have some serious questions to ask of a candidate who aspires to be the jurisprudential leader of a court, as Ncube does.
October 2024 Interview:
October 2024 Interview Synopsis:
The first 25 minutes of Judge Ncube’s interview were taken up with him providing his vision for the Land Court. He started off by stating that the ultimate goal of everyone at the Land Court is to restore the land, “Whatever we are doing, […] the ultimate aim is to get the land back to the people”. This was the main message throughout his discussion of his plans for the court, which was more focused on past injustices than how they can be effectively addressed.
When asked by Chief Justice Maya how these injustices will be redressed, Judge Ncube explained that “Judges of the Land Court mustn’t be afraid to give judgments that are robust, we must not be afraid to make orders that are unprecedented like the Mwelase case.” Another challenge is the accessibility of the court explained Ncube, “we must take justice to the people, where people are”. With the tight budget in mind he proposed that the Land Court should be decentralised, that magistrates and stakeholders should be trained and that more use should be made of retired magistrates.
Ncube explained that his “leadership philosophy is the same as my judicial philosophy, they go to together” when asked by Judge President Mlambo. He expanded on this pointing out that he subscribes to the leadership philosophy of John Rawls, the theory of justice as fairness. Practically this would discussing problems with people one-on-one, provide equal opportunities and treat the people he is working with fairly and with justice.
Deputy President Zondi expanded on the important supporting role that is played by a deputy and whether he understands the vision of the Judge President for that court. Ultimately, Ncube said that he doesn’t know her vision but that he will find out. Commissioner Notyesi found difficulty with his statement and that he had not connected any research about the Land Court or the JP’s vision of the court because the plan he creates has to be in line with the vision of the court.
Commissioner Marumoaggae asked how the theory of justice as fairness aligns with the constitutional project? Ncube didn’t think that constitutional equality could be divorced from Rawls’ theory. Prof Marumoaggae continued to explain the difference between formal and substantive equality specifically concerning land matters. Ncube explained that when land is distributed you should be ignorant of race. Commissioner Ngcukaitobi, very surprised by this comment explained that in a land reform project it doesn’t make sense to be ignorant of race, the priority of distribution is to African people. Commissioner Malema followed up on this as well to get final clarity on Ncube’s position where he finally confirmed that race is important when it comes to land matters in South Africa.
Judge Ncube was ultimately unsuccessful in his interview.
April 2024 Interview:
April 2024 Interview Synopsis:
Judge Ncube’s April 2024 interview for a position as Judge President of the Land Claims Court lasted a little over half an hour, and was unsuccessful. The JSC sought clarification on Ncube’s acting stints in the Land Claims Court, and he stated that he had acted for many years before his permanent appointment in 2022.
Ncube was asked about any leadership duties he had undertaken as a magistrate and judge. He highlighted that during his time as a magistrate he had been tasked with preparing case flow management reports and judicial administration. He had not, importantly, taken on any leadership positions and duties whilst acting in the Land Claims Court and whilst being permanently appointed in the Land Claims Court.
On his vision for the improvement of the Land Claims Court, he emphasised the need to take the court to the people and ensure that the Land Claims Court is accessible to the public. He was quizzed on how this vision could be implemented in light of the very real challenges faced by the Land Claims Court. He was further questioned on how he would deal with issues posed by the Land Claims Commission. He answered these questions and various others with confidence, reiterating his suitability for potential appointment.
October 2021 Interview:
October 2021 Interview Synopsis:
Judge Ncube’s April 2021 interview for a position on the KwaZulu-Natal High Court, seconded to the Land Claims Court, was successful. He was nominated for appointment.
In an interview that lasted a little over an hour, Ncube was quizzed on a variety of issues relating to land law and then some. Asked by the Minister of where the budget will come from for the special master Ncube ordered in his judgment (which was subsequently upheld by the Constitutional Court), Ncube baldly said “budget is no problem; she budge the Department had allocated to processing claims should be used to now assist the Special master”. Ncube made a similarly bold statement in response to the question of whether he believes the law allows expropriation without compensation. “I don’t think you can speak about access without expropriation without compensation…it’s the only way out,” Ncube said, jettisoning the coyness and caution that sometimes judges take, out of fear that the issue will one day come before them in court. Ncube went on to say the Constitution was vague and should be made explicit to allow expropriation of land without compensation, and even the Expropriation Bill still falls short. While his responses no doubt won him some favour with the more radical quarters of the of the JSC, it will be interesting how parties who come before his court would take the statements.
