Capacity: Judge
First appointed as a judge: 01 January 2016 (Gauteng, Johannesburg)
Gender: Male
Ethnicity: African
Date of Birth:
Key judgments:
- South African Legal Practice Council v Chalom (18445/2020) [2020] ZAGPPHC 663 (26 November 2020)
- Commissioner for the South African Revenue Service v Louis Pasteur Investments (Pty) Ltd (12194/17) [2021] ZAGPPHC 89 (4 March 2021)
- S v Chuir and Another 2012 (2) SACR 391 (GSJ)
- Isaac v Potgieter 2019 JDR 0624 (GJ),
- McNair v Crossman and Another 2020 (1) SA 192 (GJ)
- Momberg v S (A206/2018) [2019] ZAGPJHC 183 (28 June 2019)
Candidate bio:
Handling convicted racist Vicki Momberg’s apparent mood swings and unadulterated bigotry could not have been easy for Gauteng High Court Judge Thifhelimbilu Mudau, who heard her appeal against the magistrates’ court conviction and sentencing to three years imprisonment with one year conditionally suspended, after she was found guilty of four counts of crimen injuria.
During her court appearances, Momberg, who had used the k-word 48 times while speaking to emergency telephone operators and policemen in racially offensive language following a 2016 smash-and-grab, went through lawyers like toilet paper on a diarrhetic day, on occasions even deciding to address the judge personally in court.
Mudau (with then acting judge Shanaaz Mia concurring) held that a voluntary act was an essential element of criminal responsibility and that defenses such as “sane automatism” required careful scrutiny, even where supported by medical evidence.
The appeal against conviction was rejected as he could not find “fault with the reasoning and conclusion of the magistrate. Momberg’s insulting words were not directed at the black person who allegedly smashed and grabbed but innocent people far removed from the scene of the original incident. In this case, the appellant had the presence of mind to call 10111 repeatedly but was clear in her choices that she did not want any help from black officers. There is no doubt that she was focused when she stopped the police patrol car but took offense [sic] when approached by a black police officer … The insulting words were clearly directed at the black police officers and blacks in general. It follows, accordingly, that the appeal against conviction is without merit.”
The appeal against sentencing was also rejected with Mudau holding that the “insults arose out of and were in part directed at the performance of” the police officers’ work and that such offences “are generally considered in a serious light”.
An article by the Wits Justice Project entitled “One man’s long walk home” describes a grave miscarriage of justice regarding a Mr Thuba Sithole, who was convicted and sentenced to 15 years imprisonment for armed robbery and identifies Mudau as the presiding magistrate in the 2009 matter.
The article alleged the case “shows shoddy police work, dodgy eyewitness testimony, a dismissive magistrate and a careless defence lawyer [which] resulted in an innocent man being put behind bars.”
The article describes the evidence of the complainants as “riddled with inconsistencies”, and lacking certainty regarding the identification of Sithole. The article also argues that Sithole could not have covered the distance between his work and the crime scene in time.
“Mudau was unperturbed by, and Kahn [Sithole’s lawyer] did not protest the fact that no stolen goods were found on Sithole, nor were there any of his fingerprints on Sutton’s car. If the crime occurred as described, Sithole’s fingerprints would have been all over Sutton’s car and her car keys.”
The article noted that an appeal against the conviction was dismissed by the high court.
Mudau’s has also displayed cognisance of the rights of women, and this has been recognised by various people including journalist. Prior to Mudau’s interview to the high court in 2015, the General Council of the Bar noted that Mudau “demonstrated in his judgments in both Chuir and Tlale” that he is cognisant of the rights of woman.
In 2019 veteran legal journalist Carmel Rickard praised the judgment of the court in Isaac v Potgieter 2019, in which Mudau sat with senior judges Weiner and Sutherland. The judgment distinguished the defenses of duress and undue influence by the Plaintiff on the Defendant. Rickard commented that “…the appeal judges’ decision on this domestic drama shows a welcome and growing judicial sensitivity to the reality of ordinary people’s lives and the potential for terrible legal, financial and emotional consequences resulting from subtle – and not so subtle – abuse.”
Beyond criminal law, Mudau has also demonstrated knowledge in areas of the law as diverse as insolvency and tax. In the recent case of in Commissioner for the South African Revenue Service v Louis Pasteur Investments (Pty) Ltd Mudau had to reiterated law applicable in business rescue proceedings, including the ethical responsibilities of business rescue practitioners.
SARS had applied to convert the business rescue proceedings of Louis Pasteur Private Hospital in Pretoria into liquidation proceedings, alternatively to remove the second respondent as business rescue practitioner as SARS had found evidence that he had dodgy dealings, including taking a lackadaisical approach to the task.
Mudau found that “the very nature of business rescue proceedings meant that they had to be conducted with “a maximum possible expedition”, and “in terms of section 132(3) of the Companies Act, should terminate within a period of 3 months, unless extended by order of a court” he found. A business rescue plan should be developed and implemented “within a reasonable period”, but in this case, there had been an “extraordinary” delay, described by SARS as “deplorable.” Mudau further held that the evidence did not show that there would be an improved return because of business rescue. The conversion of business rescue proceedings into liquidation proceedings was therefore “completely justified”.
Mudau was appointed to the Gauteng High Court (Johannesburg) in 2016 after climbing the magistracy ladder to senior and regional magistrate level following his initial appointment in 1987. He holds a BIuris (1987) and an LLB (1992) from the University of Venda, and an LLM from the University of Johannesburg in 2014.
April 2021 Interview:
October 2019 interview:
October 2019 interview synopsis:
The three interviews with candidates for the position of Deputy Judge President (DJP) in Limpopo all show how important it is to prepare well for interviews with the Judicial Service Commission – and the disaster that results from lack of preparation.
First up was Judge Thifhelimbilu Phanuel Mudau. Things seemed to be going well for him. He had many years of experience as a regional court magistrate and had played a leadership role there. He assured the JSC that if given the post of DJP, he would be able to use those years and the contacts and knowledge he had gained during that time, to good effect. He is at present a judge in Gauteng, but he hails from Limpopo and would welcome the opportunity to return to the area as DJP.
Faced with the Black Lawyers Association report saying that, after only three years and six months, he had not been a judge for long enough to warrant an appointment, Judge Mudau said ‘experience is a relative word’, and that he was current serving in the busiest division in the country. He had been involved in judicial education and lectured aspirant judges. He said he was ‘meticulous’ and probed about his personality quirks he said he became irritable when court was due to start at 2pm but the relevant role players were not ready to begin on time.
Asked what vision he would have for Limpopo if he took on a leadership role there and whether he had a ‘five-year plan?’ He replied that a few weeks before he had asked for the figures on the Limpopo division. ‘I have seen the statistical returns,’ he said and spoke in general terms about having to find innovative ways of improving the situation.
Chief Justice Mogoeng Mogoeng pointed out that the JP and the DJP had a supervisory role in relation to the magistracy in Limpopo, and asked him what he thought were the major problems for the magistracy there.
In his answer, Judge Mudau listed continuing legal education and ensuring that magistrates remembered to put the date of their appointment on the front covers of files. (This is mandatory, so that judges reviewing magistrates’ decisions know how long they have been on the bench and thus whether the sentence handed down was within the magistrate’s jurisdiction.)
He would also ensure that discipline was instilled so the courts could sit ‘optimally’. However, questioned by the CJ, he said he was not aware of ill-discipline but that there were issues that had to be ‘watched’.
The CJ then delivered something of a knockout blow: he said he had thought that Judge Mudau would have mentioned that the magistrates’ court in Polokwane had been burnt down and the magistrates now had no place from which to operate. He would have thought that Judge Mudau would have studied the problems of the magistrates and would have spoken about specific difficulties such as this. What were the other critical infrastructural issues, that he had become aware of in preparation for possible appointment to the DJP position, he asked?
Judge Mudau began, ‘Well, I would imagine …’, but the CJ interrupted: ‘No, not what you imagine. What have you actually found?’
As an aspirant judicial leader in the area, what challenges had been identified in relation to libraries for example? He also asked Judge Mudau about how professional efficiency enhancement in Limpopo was going, and which role players were proving problematic?
As the interview ended, there was no doubt that Judge Mudau left the impression that while he talked smoothly and well, he had not done the homework that the JSC, and the CJ in particular, believed necessary for the position.
Judge Thifelimbilu Mudau was not recommended for appointment.
Transcripts
Read the transcript: October 2015 JSC interview of Judge Mudau
