Capacity: Judge of Appeal
First appointed as judge: July 2007 (Free State)
Further appointments:
2015 – Judge President (Free State)
2018 – Judge of Appeal (SCA)Gender: Female
Ethnicity: African
Date of Birth: March 1965
Qualifications: BA, B.Proc (UFH) LLB, LLM (UFS) Dip. Bus. Management (MANCOSA) Dip. (Adv. Labour Law)(UJ) Cert.(Estate Agency)(Estate Agency Affairs Board) Cert. (Adv. Military Law)(Thaba Tshwane)
Key judgments:
- Premier of the Western Cape Province v Public Protector (771/2020) [2022] ZASCA 16 (7 February 2022)
- Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020)
- Provincial Minister for Local Government, Environmental Affairs and Development Planning, Western Cape v Municipal Council of the Oudtshoorn Municipality (CCT05/15) [2015] ZACC 24; 2015 (6) SA 115 (CC); 2015 (10) BCLR 1187 (CC) (18 August 2015)
- Tsoaeli and Others v S (A222/2015) [2016] ZAFSHC 217; 2018 (1) SACR 42 (FB) (17 November 2016)
Candidate Bio:
Ambition and smarts have ensured Supreme Court of Appeal (SCA) Judge Mahube Molemela is a rising star in the judiciary.
If appointed as President of the Supreme Court of Appeal, she would be only the second woman to hold the position, and one of 2 women in the Top 4 positions in the judiciary.
Appointed to the Free State High Court in 2008, Molemela was heading the division eight years later, and was praised for the smooth-running of that court. She was installed in the SCA a mere four years after that.
Only the second woman to be appointed judge president of a provincial high court 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.
At the high court, Molemela wrote several important judgments, including the ‘Bophelo House 94’ case (Tsoaeli v S) where she 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.”
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. She had also been a judge in the Labour Appeal Court and the Competition Appeal Court.
In the Tsambo v Sengadi case, Molemela confirmed on appeal that the late hip hop star Jabulani Tsambo, more popularly known as HHP (pronounced ‘double-H-P’)’s marriage in terms of customary law was valid as the formal ‘handing over of the bride’ ceremony was concluded between the two families, and therefore his widow could claim his estate of hit songs like ‘Bosso ke Mang’, ‘He Banna’ and ‘Music and Lights’.
Molemela frequently writes dissenting judgments – considered a sign of independent mindedness – and some of them have been upheld at the Constitutional Court.
In United Democratic Movement v Lebashe, Molemela wrote the dissent in a 3-2 majority, finding that the SCA should’ve entertained an appeal of an interim interdict as it affected the rights of political parties to engage in political activity. This dissent was later upheld by the majority judgment in the Constitutional Court.
Molemela has debunked patriarchal and racial myths that transformation of the judiciary is accompanied by a dropping of standards.
Responding to a question by Free State Premier Magashule (provincial premiers sit on the JSC during interviews for positions in the respective provincial high courts) about whether one was sacrificing merit at the altar 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 SA chapter of the International Association of Women Judges, Molemela is also the chancellor of the Central University of Technology, Free State.
April 2023 JSC Interview for the position of President of the Supreme Court of Appeal
April 2023 JSC Interview Synopsis
The President of the SCA is the third most-senior role in the judiciary in South Africa. The incumbent is responsible for the running SA’s busiest appellate court, which provides guidance of the law to all the High Court divisions. Interviewing for the position of president of the Supreme Court of Appeal (SCA), Judge Mahube Molemela had to convince the Judicial Service Commission (JSC) that she had fresh ideas to maintain and improve upon the current standards of the bench.
Molemela secured the JSC’s nod and the body will advise the president to appoint her.
April 2022 JSC Interview:
April 2022 JSC Interview Synopsis
Supreme Court of Appeal (SCA) Judge Mahube Molemela enjoyed a breezy interview — as she usually does at the Judicial Service Commission (JSC) where her mix of likability, determination, and substance has usually proved successful.
She was questioned favourably about her dissenting judgments at the Supreme Court of Appeal which were upheld at the Constitutional Court — a sign of her independent-mindedness, some commissioners noted.
Observing that Molemela had “studied widely” ANC MP and chairperson of parliament’s justice portfolio committee, Bulelani Magwanishe, asked her what the impact of courses she pursued outside the pure legal sphere had on her career as both a legal practitioner and a jurist.
She said her studies in business management had helped her defuse a fractious provincial Bench when she became Free State Judge President. She also said that she constantly advised graduates with degrees, but no jobs, to “always be prepared to do any job” — because of South Africa’s high unemployment rate.
“Everything I have studied has turned me into the broad-minded person that I am today,” she concluded.
On what her “most important contribution to the administration of justice” was — something which she had not shared with anyone as yet — Molemela said all her work (as a lecturer, arbitrator, lawyer and a judge) had contributed to the law. She marked out working in academia as especially rewarding because “interacting with students” always gives one “a fresh perspective” on things.
She told the JSC that she had “withdrawn” from public activism, including being involved in a rural association fighting for farm-workers rights, because she was wary of potential conflicts of interest cropping up and did not want to fall foul of the Judicial Code of Ethics.
She said while she was “acutely aware” of the problems facing farmworkers there was not much she could do because “as a judiciary, we have to be reactive… we cannot ask people to bring cases to court”.
Molemela described her time acting at the Constitutional Court as “enriching, very enriching. It was the best experience of my life.”
She was asked about the challenges the apex court faced with regard to the delays in handing down judgments, perceived poor judgment writing, and the sense that it was buckling under the weight of applications it received. She noted that the SCA approach of having post-hearing meetings immediately after a court sitting, and where all judges had an opportunity to brain-storm legal issues, in order to figure out where they stood on the matter, and start to contemplate writing main or dissenting judgments, appeared to work well at the appeal court.
Molemela was listed by the JSC for potential appointment.
October 2021 JSC Interview:
Interview of Judge M B Molemela by the JSC, October 2021, for a position on the Constitutional Court
Judge M B Molemela’ application was successful. She was nominated for appointment to the Constitutional Court.
April 2021 Interview:
April 2021 Interview Synopsis:
Despite managing to reference anodyne rock-band Coldplay during her interview, Supreme Court of Appeal (SCA) Judge Mahube Molemela retained the ability to come across as eminently likeable when quizzed for promotion.
She very rarely ruffles the feathers of Judicial Service Commission (JSC) members while still managing to argue her point of view — whether it is about who is to blame for the lack of gender transformation in the legal fraternity or undercutting perceptions that she is too ambitious (for a woman, especially).
But this is not the sole reason behind her meteoric rise in the judiciary which has seen her appointed to the high court in 2008 and then head the Free State Division by 2016 before moving to the SCA a few years later.
Molemela, according to her supporters in the legal fraternity, works hard and writes clear judgments. Her stint at the SCA has been characterised by several dissenting judgments which have underlined her independent-mindedness.
Molemela was asked by the Inkatha Freedom Party legislator Narend Singh to share her opinion on dissenting and minority judgements. She reiterated her belief that there “is a space for dissension” and “also separate concurring judgments”.
Regarding the former, she felt “in most instances they do not speak to the present, they speak to the future” — in the sense that they are sometimes more forward-looking in their considerations of the facts and would be borne out by time. She said she found that the “very robust debates” which precede judgments in panel courts like the SCA and the Constitutional Court allowed judges the space to think through the facts and form legal opinions which often differs.
Attorney Mavuso Notyesi asked Molemela about the “strong language used in judgments of the appeal court to disagree with findings” in the lower courts when overturning judgments. She responded that “judicial restraint” was important in writing judgments and that appellate court judges “must use temperate language” in this regard.
Gauteng Judge President Dunstan Mlambo asked Molemela about her experiences of sitting on male-dominated panels at the SCA and the Labour Appeal Court. She said that, despite one incident with a senior male colleague at the SCA which had been resolved to her satisfaction by president Mandisa Maya’s individual intervention and general efforts, which included a diversity workshop, she had no complaints.
“I have been treated with respect… and my views have been entertained,” she said, adding that she had carved out sufficient space for dissension too.
Chief Justice Mogoeng Mogoeng was one of the male commissioners who raised concerns about Molemela’s speedy rise within the judiciary: “Why does it look like you can’t stay in one place and influence that space significantly?” he asked pointing out that she had stayed as Free Sate judge president for “two years, 11 months and 13 days” before taking up a position at the SCA.
Molemela said she had addressed the problems affecting the division, especially those related to the court roll and the allocation of cases which had caused unhappiness among colleagues and had left it “running like a well-oiled machine” by the time she was promoted to the SCA.
She also pointed out that her acting stints and then permanent appointment to the SCA had allowed three female judges to act as deputy judge president and one as judge president of the Free State division, thus furthering the cause of gender transformation.
On the social media “smear campaign” that has apparently been aimed at Free State judges, Molemela said a case had been opened and enquiries had been made to Twitter regarding the accounts from which these unsubstantiated allegations emanated and aside from information that these were fake accounts, there had been no new developments or information from the social media behemoth.
Molemela was included on the list of candidates to be sent to President Cyril Ramaphosa for potential appointment to the Constitutional Court.
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 [2014] 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?
