First appointed as a judge: Labour Court (2007
Further Appointments: Gauteng High Court, Johannesburg (2017)
Date of Birth: October 1956
Qualifications: BA (Law)(1983)(Uni.Lesotho), LLB (1986)(Wits), LLM (1990)(Georgetown, USA)
- Magashule v Ramaphosa (2021/23795)  ZAGPJHC 88;  3 All SA 887 (GJ) (9 July 2021).
- Malema v Road Accident Fund (A5075/2015)  ZAGPJHC 275 (3 October 2017).
- Inzalo Enterprise Management Systems (Pty) Ltd v Mogale City Local Municipality (2022/2958)  ZAGPJHC 417 (21 June 2022).
- Vodacom (Pty) Ltd v National Commissioner, South African Police Service (18770/2022)  ZAGPPHC 215 (17 March 2023).
- Afriforum v Economic Freedom Fighters (EQ 04/2020)  ZAGPJHC 599; 2022 (6) SA 357 (GJ) (25 August 2022).
Candidate Bio (updated October 2023)
Judge Edwin Mogomotsi Molahlehi is a judge of the Gauteng High Court, Johannesburg.
Before taking up a position as a judge of the Gauteng High Court, in 2017, Molahlehi spent almost a decade as judge of the Labour Court. It would be a homecoming if the JSC confirms him as Deputy Judge President of that court.
After graduating with a BA(Law) degree from the National University of Lesotho in 1983, Molahlehi joined the anti-apartheid law firm Centre for Applied Legal Studies as a fellow. While at CALS, Molahlehi worked on labour cases by day, at night he carried a full study load to complete his LLB degree at Wits University in 1986. Later that year, he joined ‘Big 5’ law firm Bowman Gilfillan as a candidate attorney from 1986 to 1988.
He left South Africa in 1989 to complete his LLM degree at Geogetown University Law School in Washington DC, in the United States.
He returned to CALS in 1990 as a research officer and director of its Community Dispute Resolution Trust. At the same time, when townships across the Witwatersrand were a hotbed for violence, he served as a mediator, facilitator and trainer with the National Peace Accord.
From 2000 he served as the director of the Department of Labour’s Employment Conditions Commission and held his first stint as an acting judge in the Labour Court.
However, he would be drawn to politics and government administration, becoming the first Executive Mayor of the new West Rand District municipality, which covered his hometown of Kagiso in Krugersdorp.
He left politics in 2003 to take up a string of positions in the labour dispute resolution space. He served as director of the Commission for Conciliation, Mediation and Arbitration (CCMA); a mediator on the Tokiso Dispute Resolution Panel and the Independent Mediation Service of SA; chairperson of the Public Service Bargaining Council; and a board member of Legal Aid South Africa.
Molahlehi was appointed a judge of the Labour Court in 2007. As a judge he wrote several judgment spanning the entirety of labour law. This includes the judgment in Mtati v KPMG (Pty) Ltd, an urgent application in which the applicant, Ms Mtati, sought to interdict the respondent, accounting firm KPMG, from proceeding with a disciplinary hearing after she had resigned. Molahleli held that an employee could be disciplined while serving a period of notice before the termination of employment, however, an employer had no power to discipline an employee once they have resigned. He therefore declared KPMG’s disciplinary hearing null and void.
Molahlehi’s judgment in Mtati v KPMG was criticised in a 2018 article titled “I resign with immediate effect!” in the law magazine Without Prejudice. The article argued that Molahlehi had misunderstood the legal principles related to resignation: “It is not sufficient for the employee to resign; he or she must also observe the notice period as agreed in the contract of employment, unless the employer agrees to waive its right to the notice period.”
Prior to the amendment of the Labour Relations Act, Labour Court judges served a non-renewable term of 10 years in that court. Therefore, when Molahlehi’s term was nearing its end, he applied and was appointed as a judge of the Gauteng High Court in 2017.
While at the high court, Molahlehi dealt with a wide span of legal disputes involving corporate giants like telecoms company Vodacom (in Vodacom v National Commissioner: SAPS), and political giants like the president and secretary general of the African National Congress (in Magashule v Ramaphosa).
However, most people would be familiar with Molahlehi as the presiding judge in the Afriforum v Economic Freedom Fighters case. The case dealt with the question of whether the song Dubul’ iBhunu, which had the lyrics ‘Dubul’ iBhunu (‘Shoot the boer’) and ‘Ayasab’ amagwala’ (‘the cowards are scared’), constitutes hate speech in terms of the Equality Act (the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000).
The trial was broadcast live on national television and heard testimony from several witnesses including history expert Professor Liz Gunner, and Afriforum’s Ernst Roets who crumbled in the face of withering cross examination. EFF leader Julius Malema also brought drama to the trial, including blowing kisses to Afriforum’s counsel. In the end Molahlehi found that the case presented a tension between constitutionally protected freedom of speech and constitutionally banned hate speech. However, the history and context song meant that it could not be classified as hate speech in terms of the Equality Act. Therefore, Afriforum’s case was dismissed.
With a wealth of experience in labour dispute resolution in government, the private sector and NGOs, coupled real management experience as director and board member, Molahlehi seems suited to the position of deputy judge president. He has also been acting in the position since March 2023.
With only 3 years until his retirement, Molahlehi’s appointment as deputy judge president would most likely be in a caretaker position as the Labour Court transitions into a new era, with long-time Judge President Basheer Waglay also taking early retirement.
October 2023 Interview:
Judge Edwin Molahlehi’s October 2023 interview for the position of Deputy Judge President of the Labour Court and Labour Appeal Court was successful. He was nominated for appointment.
October 2016 Interview:
October 2016 Interview synopsis:
Asked by Gauteng Judge President Dunstan Mlambo why he wanted to move from the Labour Court, Judge Molahlehi said he “always wanted to be involved in broader aspects of the law”.
Responding to a question about “judicial accountability” Molahlehi said judges were accountable to the Constitution, the litigants in matters being adjudicated, the judiciary’s hierarchy (from judges president all the way up to the chief justice) and to their colleagues on the Bench.
Asked by commissioner Jomo Nyambi about gender representation in the high courts, Molahlehi said there was still a lot required to ensure proper gender and race representation on the Bench.
He added that he was particularly concerned about the attrition rate of female acting judges leaving the high courts. He suggested that judges president think hard about how to address the “environment” that female judges were finding themselves in.
Asked about the connection between democracy and the rule of law, Molahlehi said the latter was the “cornerstone” of the former.