Appointed to the Supreme Court of Appeal: 2018
Further appointments: Appointed as JP Free State HC 2014
First appointed as a judge: 28-07-2008 to the Free State High Court
Key judgments: (1) Gold Circle (Pty) Ltd v Maharaj (1313/17)  ZASCA 93 (3 June 2019) ; (2) Purlish Holdings v The Commissioner for the South African Revenue Service (76/18)  ZASCA 04 (26 February 2019) ; (3) Joan Cynthia Griessel NO & others v De Kock (334/18)  ZASCA 95 (6 June 2019)
Ambition and smarts have ensured Supreme Court of Appeal (SCA) Judge Mahube Betty Molemela is a rising star in the judiciary. Appointed to the Free State High Court in 2008, she was heading the division eight years later and was installed in the SCA a mere four years after that.
The second woman to be appointed judge president of a provincial division after the North West’s Monica Leeuw, Molemela holds LLB and LLM degrees from the University of Free State, where she also later taught in the law faculty.
In the 2019 matter of Gold Circle (Pty) Ltd v Maharaj, the respondent, a professional racehorse trainer, had in 2008 instituted proceedings under the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), claiming that the applicant had discriminated against him on racial grounds. The Equality Court upheld a special plea of res judicata (that the matter could not be raised in another court) and issued an “estoppel” to prevent the claim to be raised again.
The high court, however, overturned the Equality Court’s decision and remitted the case to the magistrate’s court decision to be heard before another magistrate.
This litigation found its way back up to the Supreme Court of Appeal in 2019 where Molemela, then an acting judge of the court (with Majiedt, Wallis, Saldulker JJA and Weiner AJA concurring) found that new evidence had been placed before the Equality Court which had not been adduced in the 2008 case.
This related particularly to anger management treatment undertaken by the Maharaj, which he wished to use to show that applicant’s reasons for its decision to refuse him stabling facilities were a sham.
Molemela noted that it was not for the SCA to determine whether the evidence did so, but the respondent was entitled to seek to use the evidence in this way. She found that the Equality Court had therefore erred in making the finding of issue estoppel. Since no evidence had been led on the merits of the most recent claim, the high court had been correct to remit the case to the equality court.
Molemela then turned to consider whether remarks by the high court had shown “a lack of judicial restraint”, and noted that while judges may have to express critical views about litigants and witnesses, this required circumspection, “and must be supported by all the facts.”
“Given its unfortunate history of structured racism, South Africa is still a racially charged society. … These cases [in which accusations of racism were made] attest to the far-reaching consequences that a mere accusation of racism may bring. Courts must therefore be alive to the sensitivity of disputes involving racial connotations. Circumspection is required not only in relation to the order that is ultimately made but also in relation to remarks made en passant. …”
“[G]iven that the allegations of racism had not been tested by cross-examination and that Gold Circle had countered the allegations of its lack of transformation by presenting names of black people who had allegedly benefitted from transformation policies of Gold Circle, there was simply no basis for the court a quo to have made remarks from which it could be implied that Gold Circle is racist. The court a quo seems to have made findings pertaining to the very nub of the case based on unproved facts. This is contrary to established legal principles which dictate that inferences be drawn only if they are justified by proven facts. Moreover, since there were disputes of facts on that very aspect, it was impermissible for the court a quo to make the remarks it made on the basis of averments made by just one party.”
Molemela found that the high court had also been unjustified in commenting on the magistrate’s readiness to proceed with the matter. There was no reason why the magistrate should be precluded from presiding over the new hearing of the matter.
The appeal was dismissed and the matter was remitted to the Equality Court for a new hearing before any presiding officer.
Molemela has handled high profile cases including dealing with the right-wing plotters who had allegedly sought to blow up the ANC’s 2012 national conference in Mangaung. In 2017, on the eve of the ANC’s elective conference in Nasrec, Johannesburg, Molemela ruled the Free State provincial executive committee and several ANC branches were ineligible to participate.
The ruling prevented then provincial ANC chairperson and Free State premier, Ace Magashule, his entire executive and 14 Free State branches from participating in the election of a president to replace the outgoing Jacob Zuma. Magashule was considered a “Premier League” strongman and supporter of Zuma and the decision would have been a significant contributing factor to Cyril Ramaphosa, rather than Zuma’s proxy, Nkosazana Dlamini-Zuma, ascending to the ANC presidency.
In the ‘Bophelo House 94’ case (Tsoaeli v S) Molemela set aside the criminal convictions of 94 community health-workers (and members of the Treatment Action Campaign) who were convicted of attending an illegal gathering outside the Free State provincial health headquarters to protest against their summary dismissal by the allegedly corrupt provincial health minister.
She found that, properly interpreted, the relevant provision of the Regulations of Gatherings Act created no crime for people who attend a public gathering without notice to the authorities, and thus they could not be convicted.
Said Molemela: “[T]he right to freedom of assembly is central to our constitutional democracy and exists primarily to give a voice to the powerless. Given the constitutionally protected right to peaceful assembly, a provision which allows for unarmed and peaceful attendees of protest gatherings to run the risk of losing their liberty for up to a period of one year and to be slapped with criminal records that will, in the case of the appellants, further reduce their chances of gaining new employment for merely participating in peaceful protest action, undermines the spirit of the Constitution.”
“On the basis of all the reasons I have canvassed above, I find that section 12(1)(e) [of the Regulations of Gatherings Act] as it currently stands, does not create an offence for attendees who participate in a gathering for which no prior notice was given to the authorities mentioned in the RGA. The appeal must therefore succeed.”
In S v Pilane, the respondent had been convicted of rape and sentenced to ten years in jail in the regional magistrate’s court. On appeal, the high court found that the oath taken by the three witnesses for the state was irregular because it had been administered by the interpreter and not the judicial officer. The high court therefore found the evidence of the witnesses to be unsworn and therefore inadmissible and set aside the conviction and sentence.
The appeal by the state was upheld and the decision of the high court was set aside in the Supreme Court of Appeal (SCA). Acting at the SCA at the time, Molemela, with a full Bench concurring, found:
“Where a witness testifies through the interpreter, the interpreter is empowered to administer the oath if the judicial officer so prefers and if the interpreter does so in the presence or under the eyes of such judicial officer. In doing so, judicial officers are not abdicating their responsibilities; they are doing what is permissible in terms of the CPA [Criminal Procedure Act].”
During the sitting of the Judicial Service Commission (JSC) which promoted her to head the Free State Division, it became clear that there were severe divisions and unhappiness at that court. When asked about how she would deal with these, Molemela said she would use the skills she learnt at the Centre for Conciliation, Mediation and Arbitration to resolve the unhappiness in Bloemfontein.
Prior to her permanent appointment to the SCA in June 2018 Molemela had acted several times on that Bench and had spent two terms acting at the Constitutional Court in 2015.
Molemela has debunked patriarchal and racial myths that transformation of the judiciary is accompanied by a dropping of standards. Responding to a question by Magashule (provincial premiers sit on the commission during interviews for positions in the respective provincial high courts) about whether one was sacrificing merit at the alter of transformation during her October 2014 interview, Molemela said: “I don’t mean to be cocky but I think if you appoint me you will not appoint me purely on gender,” it would be “a meritorious” appointment, “I have skills”.
A member of the International Association of Women Judges, Molemela is current chancellor at the Central University of Technology.
April 2018 Interview:
April 2018 Interview Synopsis:
Free State High Court Judge President Mahube Molemela was appointed to the Supreme Court of Appeal (SCA), despite some members of the Judicial Service Commission (JSC) expressing concern that she appeared to be shooting up the ranks at a breathless pace.
When asked by Chief Justice Mogoeng Mogoeng whether she needed a few more years as head of the Free State bench, Molemela said she had “made a succession plan immediately after being appointed in  because I believe every leader needs a succession plan.” She later told the commission that her division was in good health and would “not fall apart” if she left because of the systems and culture in place.
She said the “vast majority of practitioners were impressed” by the manner in which the Free State high court was being run, according to questionnaires they had responded to, and that the changes she had implemented were the reason behind that. These changes included the punctual issuing of the court roll and the swift handing out of records of appeals and case files. She added that her Bench had transformed towards including more female and black judges and was a collegial space.
Molemela argued that if one “sets goals for yourself and you are happy with the results… there is no reason not to aspire” towards new jobs and challenges.
When asked by attorney CP Fourie about her several acting stints at the SCA (for about fifteen months) and the Constitutional Court (about five months) since her 2014 appointment as judge president, and whether this absence for long periods retarded her work, Molemela assured the commission that she was in “almost daily” contact with her deputy and the division as a whole.
“Although I was never physically present in the division my footprint was always there,” she told the JSC.
She said once the administrative changes had been instituted the divisions was running more smoothly and this opened the way for her to act in the higher courts. Molemela said her acting stints were also beneficial in terms of “personal growth” and was “beneficial to her team because when you go back [from an acting stint] you are not the same person… Your mind, once it is stretched to new dimensions, will never be the same.” She said she garnered valuable advice and perspectives on the law while acting in the higher courts which she passed on to her colleagues in the Free State High Court.
Molemela said that her acting also “created a vacuum” which were filled by other judges and acting judges who gained new experiences at the division. Pointing to the fact that “22 ladies” acted in the Free State while she was acting in higher courts, Molemela said this was “something good” for enhancing transformation.
Molemela told the commission that “lots of things” around transformation had become “paper tigers: “Verbally, we are told [by the legal profession] this is going to happen [to hasten transformation] to address historically skewed briefing patterns” but there was little follow up on these assurances, she complained.
When Molemela complained about the state giving most of its work to pale males, Justice Minister Michael Masutha responded that eighty percent of government’s work actually went to black and female attorneys — a startling disclosure that overturned common perception.
Masutha then followed up with a question — self-deprecatingly picking on his partial-sightedness — which may have assisted him in his job, but did little to shed light on the candidate’s suitability for the SCA: “Why does the action not match the talk… I have heard some ministers say ‘No. No. No. I want a white lawyer [to be briefed]’. Do you know why this is or are you as blind as I am?
Molemela said she did not know why government ministers acted in this way.
She also expressed disquiet over the manner in which some senior judges at the SCA had treated her during her acting stints — causing Mogoeng to raise concerns that if they treated their colleagues in this manner, how would they treat litigants and lawyers?