Capacity: Judge
First appointed as a judge: 1 January 2016
Gender: Female
Ethnicity: African
Date of Birth: June 1967
Qualifications: B. Iuris (North-West University); BA Honors and M.Phil (UJ); LLB (UNISA)
Key judgments:
- S v Carter 2014 (1) SACR 517 (NCK)
- Troger NO and Another v Hunt and Others [2015] JOL 33725 (NCK)
- Links V MEC, Department of Health, Northern Cape Province (1870/2012) [2013] ZANCHC 26
- Nama Khoi Municipality and Others V Member of the Executive Council for Local Government, Northern Cape Provincial Government and Others [2013] JOL 30646 (NCK
Candidate Bio:
Judge Mamosebo was born in Ga-Rankuwa in 1967.
Mamosebo holds a B.Iuris, a BA Honors in Labour Relations, MPhil in Labour Law, LLB and a Diploma in dispute resolutions.
Her legal career started in 1989 when she commenced working for the Department of Justice as clerk of the maintenance office. In 1991 she moved up the ranks and became a state prosecutor. Mamosebo left the department of justice in 1997 when she became the Independent Complaints Directorate. She re-joined the Department of Justice in 1999 as an assistant director, which position she held for a period of one year.
Mamosebo was first appointed to the bench in 2000, as a magistrate. She remained in this position until 2003 when she left the magistracy. In 2003 she worked as an employment equity and employee relations manager for African Life. From January to June 2005, she worked as a BEE consultant for Small Employers Enterprise of South Africa (SEESA).
In June 2005 Mamosebo re-joined the Department of Justice as a senior magistrate, a position she remained in until October 2012. In October 2012 she started acting as a judge of the high court, until her permanent in January 2016. She has since remained a high court judge in Kimberly and now seeks appointment as such in the Electoral Court, which currently has no women judges.
Mamosebo has penned down various judgments, some of which have been appealed against unsuccessfully and some of which have been overturned on appeal.
In the case of S v Carter 2014 (1) SACR 517 (NCK) she had to hear an appeal against a judgment of the magistrate’s court, which convicted Carter of attempted rape when he was charged with rape. The State appealed against the sentence and conviction imposed by the court of first instance. The court, comprised of Mamosebo, dismissed the appeal by the State and the dismissal was based on that the state was only entitled to appeal against the discharge of an accused on a point of law and not on merits. The court, however, suggested that perhaps the time had come for the courts to enquire whether the state should not also be entitled to appeal against a discharge on the merits. The suggestion was because the magistrate’s court had misdirected itself in dealing with the case. The court noted with dismay that “[w]hat seems to have blindsided the constitutive court is their unawareness that the slightest penetration of an orifice (per vagina or anally) constitutes rape.” The court ordered that a copy of its judgment be sent to several authorities for the purpose of possibly amending the law in this regard. The amendment would enable the State to continue with an appeal on both the law and merits.
In the case of Troger NO and Another v Hunt and Others [2015] JOL 33725 (NCK) Mamosebo was faced with a dispute relating to the law of succession. In this case, the Applicants’ mother (Mrs. Hunt) and the respondents’ father (Mr. Hunt) were married out of community of property. Mr Hunt fell ill, passed away and left his last will and testament which was amended frequently while he was on his death bed with the assistance of his sons and local attorney. The will contained various ambiguities, which Mamosebo had to decide upon.
The first issue to be determined was the intention of the testator, Mr Hunt, in his last will and testament and whether there was an enforceable fideicommissum created. The second issue to be determined, as contended for by the applicants, was whether allowing Mr Hunt’s sons (the first and second respondents) to inherit the immovable property in equal undivided shares contravened the provisions of the Subdivision of Agricultural Land Act, 70 of 1970, resulting in the bequest being null and void? The third and last issue to be determined was whether the court should declare the fideicommissum in the will pro non scripto?
Mamosebo answered the first issue in the affirmative. In doing so, she extensively considered the relevant case law, which is clear and agreed with the rules applicable to the interpretation of wills. She quoted in agreement that “the golden rule for the interpretation of testaments is to ascertain the wishes of the testator from the language used. And when these wishes are ascertained, the Court is bound to give effect to them, unless we are prevented by some rule or law from doing so.”
Regarding the second issue, Mamosebo found that there was no contravention of the provisions of the Subdivision of Agricultural Land Act, 70 of 1970. In deciding the second issue Mamosebo revisited the common law on when ownership passes to the acquirer of land. She quoted with approval that “[t]he general rule is of course that ownership of land passes at the moment that delivery of the immovable is given to the transferee and that occurs at the moment his name is entered in the register as the new dominus of the property…. But this general rule is subject to certain exceptions, one of which relates to succession by a fideicommissary on the death of the fiduciary.” Mamosebo also noted that “[i]t is now accepted that a fideicommissary acquires ownership of the immovable property upon the fulfillment of the fideicommissary condition without the need for registration.” Therefore, Mamosebo concluded that the argument that the fideicommissum is unenforceable and should fall away is against the backdrop of the restrictive interpretation and this could never have been the intention of the legislature as this would deprive beneficiaries of their inheritance. Mamosebo dismissed the application in its entirety.
Momosebo is not only a judge, but she has also been an active member of the South African Chapter of the International Association of Women Judges (SAC-IAWJ). Between 2010 and 2012, she was the provincial coordinator in Gauteng and between 2018 and 2020 she was the provincial coordinator in the Northern Cape.
Judge Mamosabo is also an active member of the Methodist Church of South Africa, and specifically the women’s manyano.
October 2022 Interviews
October 2022 JSC Interview of Judge Mpho Catherine Mamosebo for a judge-member position on the Electoral Court. Judge Mamosebo’s application was unsuccessful.
