Capacity: Judge
Further appointments: 2019 (Judge of the Special Tribunal)
First appointed as a judge: 2011 (Gauteng, Pretoria)
Gender: Male
Ethnicity: African
Date of Birth: 24 July 1956
Key Judgments:
- The Re-Opened Inquest Into The Death Of Ahmed Essop Timol (IQ01/2017) [2017] ZAGPPHC 652 (12 OCTOBER 2017)
- Mabelane v Dykema and Another (1054/2017) [2018] ZASCA 174; [2019] 1 All SA 316 (SCA) (3 December 2018) (minority)
- Mphephu v Mphephu-Ramabulana and Others (948/17) [2019] ZASCA 58; [2019] 3 All SA 51 (SCA); 2019 (7) BCLR 862 (SCA) (12 April 2019)
- SIU v Msagala and Others (Special Tribunal Case GP03/2020)(17 November 2020)
- Ackermans Ltd v Commissioner, South African Revenue Service 2015 (6) SA 364 (GP)
Candidate Bio:
When the inquest into the death of South African Communist Party activist Ahmed Timol was reopened in 2017, what struck many of those present during the hearings was the profound empathy and sensitivity of the presiding judge — the Gauteng High Court’s Selewe Billy Mothle.
Timol had been killed in 1971 and most of the witnesses had aged considerably since then. Mothle was patient and tender with witnesses ranging from legendary human rights lawyer, the now-deceased George Bizos to Timol’s comrade, Salim Essa, who had been arrested with him on 22 October 1971.
The apartheid wrongs that needed righting — especially for the families of the disappeared and dead who had not reached any sense of closure — appeared paramount for Mothle.
Mothle found that, contrary to the police version of suicide, the “evidence of assault and other forms of torture of detainees … is so overwhelming that the denial and lack of knowledge thereof by the three former Security Branch police officers who testified is disingenuous.”
Timol, Mothle found, was pushed to his death from the tenth floor of John Vorster Square police station in Johannesburg and that there was prima facie evidence implicating the surviving security policemen in causing his death.
His ruling has set a precedent for other apartheid-era deaths of activists in police detention to be reinvestigated and prosecuted.
It was surprising that Mothle, who considers himself a feminist and is scathing of capital punishment after his experiences representing political prisoners during apartheid, was not nominated for a position at the Supreme Court of Appeal (SCA) after a good interview in 2019.
He has acted at the appellate court from December 2017 – September 2018 and said, in his 2019 interview that he found the experience “intellectually stimulating” . One of the matters he dealt with involved a succession dispute for the leadership of a traditional authority, between two cousins.
In the case of Netshimbupfe and Another v Carthcart & Others, one cousin had been identified as the successor to lead the Tshimbupfe Traditional Community at a royal family meeting, while another was identified for the same position at a meeting of the royal council.
Prior to these meetings, each would-be successor had approached the Limpopo premier to be recognised as a senior traditional leader.
At the time of the court proceedings, the premier had not made a decision — the issue before the court was whether the application was premature and should remain in the premier’s in-tray in terms of section 12(2) of the Limpopo Traditional Leadership and Institutions Act (the Limpopo Act).
Mothle, with two judges concurring, held that “the essence of the respondents’ contention was to put the composition of both royal structures at the centre of the dispute”. This raised the question of who should have populated each structure, and who was entitled to be present when the traditional leader was identified.
Mothle felt this “required a factual enquiry, whose answer should have been sought from customary law.” However, the full bench of the High Court had not done so.
“Section 211(3) of the Constitution obligates the courts to apply customary law, when it is applicable. The full court thus erred in not applying customary law as it was applicable. It should have referred the matter forthwith to the Premier, without making any finding.”
Mothle held that the notion that customary institutions must take precedence in the resolution of disputes concerning customary law does not mean that the jurisdiction of the courts is ousted. Rather, the Constitution recognises that parties may approach the courts and as such, it obligates the courts, in such instance, to apply customary law.
In dismissing the application Mothle found that the application “effectively invited the High Court, the full court and this Court on appeal, to encroach, in breach of the doctrine of separation of powers, onto the terrain of the exercise of the Premier’s statutory executive authority and functions”.
Judges Dambuza and Van der Merwe wrote a separate concurring judgment.
Other significant judgments by Mothle include Mphephu v Mphephu-Ramabulana, which dealt with traditional leadership succession; the 2014 high court matter of M v Minister of Police which concerned the constitutional damages related to a child’s loss of parental care due to their deaths at the hands of a third party (in this case the police) and South African Association for Water User Associations and Others v Minister of Water and Sanitation & Others, CJ Lotter NO & Others v The Minister of Water and Sanitation and Others, FGJ Wild & Others v The Minister of Water and Sanitation & Others.
The last judgment dealt with three applications heard together before a full bench of the high court in Pretoria and concerned the transfer of a water usage license issued by the department and whether the licensee could legally sell it to a third party at a discretionary price. The judgment found that to do so would, in essence, privatise the sale of water drawn from public resources which the court found the National Water Act did not allow.
Mothle was nominated by Advocates for Transformation, the Pan African Bar Association, and Advocate Moses Mphaga SC, who has known Mothle since he (Mphaga) was a 14-year-old activist shot, wounded, and then arrested by the police in the 1980s in their shared hometown of Mamelodi.
In his nomination letter, Mphaga said Mothle, who represented him after his arrest, had been a “role-model ever since” and inspired him to become a lawyer because he was “moved by his passion for the law and his commitment to a course for justice for the marginalised members of society”.
The 64-year-old Mothle holds a B.Proc (1979) from the University of South Africa and an LLM (1987) from Georgetown University. In 1987 he completed a National Institute for Trial Advocacy Diploma at Harvard University.
He served articles at Maluleke, Seriti & Moseneke before working as an attorney and serving as the co-national director for Lawyers for Human Rights from 1988-1992. He was executive director of the Independent Electoral Commission from 1998-2000. From 2001, he spent nine years at the Pretoria Bar, taking silk in 2008.
Over the years Mothle has worked as the legal consultant for the International Organisation for Migration (1992-1994), special advisor to the Limpopo Premier (1994-1996) and chief director of investigation as the Independent Complaints Directorate (1997-1998). He is a trustee of the Mamelodi High School board, which he joined in 2017.
April 2021 Interview:
April 2021 Interview Synopsis:
With the Judicial Service Commission (JSC) interviews running late into the night Gauteng High Court judge Selewe Billy Mothle’s started at 19.35 and finished a few minutes after 20.00.
Having previously interviewed unsuccessfully for a position at the Supreme Court of Appeal in 2019, the commission was perhaps familiar with his personality and jurisprudence in an interview which centred mainly on his work at the reopened inquest into the death in detention of South African Communist Party activist Ahmed Timol in 1971.
Mothle told the commission that when Judge President Dunstan Mlambo allocated the inquest to him he realised that “there was no precedent and that every step that I took would be precedent setting, so I took my time”.
He said some of the challenges he faced included that some witnesses had either died or aged considerably, to the point that memories may have faded. He also found that many documents relevant to the inquest “had disappeared”.
Mothle said at times witnesses would deny having tortured anti-apartheid activists during the inquest and the “next day I would get an affidavit saying this person is not telling the truth, he tortured me”.
The candidate said while it was, at times, difficult going, “I kept telling myself ‘you have seen all this before, you have been here before’” observing that he had dealt with torture cases of activists and police denial of any wrongdoing while he served articles and worked for the law-firm run by former Deputy Chief Justice Dikgang Moseneke in the 70s and 80s.
Commissioners like the Inkatha Freedom Party’s Narend Singh noted that Mothle was also on the special tribunal set up to investigate and prosecute cases related to corruption in the multi-million rand procurement of Covid-19 personal protection equipment by the state. They quizzed him on whether his presence would not be missed on that important body.
Mothle said he had already prepared the first set of practise directives for the Tribunal and had started hearing cases but that the work was “not specialised”: “I believe I am really not indispensable there,” he told the commission.
He added that he was five years away from retirement and having earned his stripes at the high court, wanted to end his career at a higher court.
When asked by ANC member of the National Council of Provinces, Thamsanqa Dodovu, what his five attributes for a good judge were, MOthle listed judicial temperament, being able to work cooly under stressful conditions, and to write good judgments among his pick.
Dodovu followed up by reflecting on the proverb “to be as sober as a judge” and asked Mothle to comment on its meaning.
He said that he couldn’t speak “for other people” but by his reckoning, it meant that one needed to be sober and “independent-minded … you must be able to apply your mind without fear of favour, but with a sense off justice and that one must have integrity”.
April 2019 Interview:
April 2019 Interview Synopsis:
Apartheid’s ghosts — and the injustices that continue into the present — returned during Gauteng High Court Judge Sewele Mothle’s interview, when it became apparent that so many families were still no closer to knowing what happened to their loved ones, disappeared by the apartheid state’s security apparatus, or to any form of closure.
Mothle adjudicated the precedent-setting reopened inquest into the 1971 death of antiapartheid activist Ahmed Timol. His findings that Timol had been murdered by apartheid police at Johannesburg’s notorious John Vorster Square has allowed other families the legal space to uncover what happened to their loved ones — and who was responsible.
But Mothle cast a frustrated shadow over any optimism his 2017 ruling would have fired up by pointing out that so many inquests — including four which were ready to be prosecuted when he handed down his Timol judgment — had not been reopened since then: “I don’t know what is happening,” he told the commission, “I was looking for the momentum from the [Timol] inquest to be retained because people need closure,” he said.
Mothle added that it was urgent to follow up in these matters as witnesses were getting older, either losing their memories or dying; records were being lost and victims’ families were also dying having had no succour from the post-apartheid state.
While many acting judges have floundered in the toxic atmosphere at the SCA, Mothle said he had a “soft landing” because he was “assisted by judges from Gauteng who I knew before” who “guided me through the protocols and culture”.
He said there was an initial culture-shock with the “immediate conferencing” between judges after a hearing, but that he had time to adapt and overall, had found the experience “intellectually rewarding”.
Mothle told the commission that he was a feminist, was against capital punishment since research had shown it was not a deterrent to crime and then cited the example of a client, an activist on death-row during apartheid, who he had assisted while working for Lawyers for Human Rights: “He had not exhausted his appeals because he didn’t have funds… and the appeal court found that he was wrongfully convicted… It is very dangerous to rush to execute people,” Mothle told the commission.
It came as somewhat of a surprise that he was not recommended for appointment by the JSC.
