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Judge R S Mathopo

Capacity: Justice of Constitutional Court
Appointed to the Supreme Court of Appeal: 2015
First appointed as a judge: 2006 (Gauteng, Johannesburg)
Gender:  Male
Ethnicity: Black African
Date of Birth:  28 January 1963
Key judgments:

  • Tshabalala V S; Ntuli v S (CCT323/18;CCT69/19) [2019] ZACC 48; 2020 (3) BCLR 307 (CC) (11 DECEMBER 2019)
  • Democratic Alliance v Acting National Director Of Public Prosecutions And Others (19577/09) [2013] ZAGPPHC 242; [2013] 4 ALL SA 610 (GNP)
  • Paixao And Another V Road Accident Fund (05692/10) [2011] ZAGPJHC 68
  • Minister Of Justice And Constitutional Development And Another v South African Restructuring And Insolvency Practitioners Association And Others (693/15) [2016] ZASCA 196; [2017] 1 ALL SA 331 (SCA); 2017 (3) SA 95 (SCA) (2 DECEMBER 2016)

Candidate Bio:

Law-fare, especially the waging of unresolved political battles in the courts, has been a defining characteristic of post-apartheid South Africa. This is especially so because of former president Jacob Zuma’s accountability-averse predilection for eroding institutions like the National Prosecuting Authority (NPA) and what has become known as his “Stalingrad” legal tactics: appeal adverse findings on whatever points of law and technicalities possible.

Judge Rammaka Mathopo presided over one such related matter when the opposition Democratic Alliance applied to the high court to ensure that the National Prosecuting Authority complied with a ruling of the Supreme Court of Appeal and released the so-called “Spy Tapes” in DA v Acting National Director of Public Prosecutions and Others. These secretly taped conversations between former NPA head Bulelani Ngcuka and Scorpions boss Leonard McCarthy had been central to criminal charges against Zuma being dropped in 2009 by then acting national director of public prosecutions, Mokotedi Mpshe. The dropping of charges allowed Zuma to ascend to the presidency of the country.

The Supreme Court of Appeal (SCA) had ordered the release of the record, including a telephonic recording and transcript of the “spy tapes”, as well as any internal memoranda, reports or minutes of meetings dealing with the contents of the recordings and or transcript, except “the written representations made on behalf of [Zuma] and any consequent memorandum or report prepared in response thereto or oral representations if the production thereof would breach any confidentiality attaching the representations (the reduced record)”.

The NPA produced a reduced record while failing to do so within the timeframe stipulated by the SCA. Mathopa heard an application to compel the acting director of public prosecutions to release the complete record and have him held in contempt of court.

The third respondent (Zuma) argued that the disputed material did not form part of the qualified record, and that the production of transcripts and written and oral representations was protected by confidentiality.

Mathopo held that “[i]t should have been obvious to the third respondent” that “more was required to clarify his position instead of taking refuge on a point of law”, and that no cogent explanation had been put forward by his lawyers as to why he was entitled to confidentiality. He also rejected an argument that Mpshe had breached Zuma’s confidentiality or privilege by releasing the transcripts during his public address.

Mathopo found that it was “desirable that the transcripts be produced to test and properly contextualise whether the decision of Mpshe was based on rational grounds or not” and that the SCA order regarding confidentiality did not extend to the transcripts.

Mathopa also found that it was inappropriate for the court “to have its powers limited by the ipse dixit of one party” and that a “substantial prejudice will occur” if Nomgcobo Jiba (who was acting NDPP at the time of the matter being heard) was permitted “to be final arbiter and determine which documents must be produced”. This he found “illogical”.

He said because Zuma had failed to prove his representations were confidential and in the absence of concerns raised by the former president Jiba had “no right to independently edit the record. It must produce everything. To the extent that the third respondent claims confidentiality, he must set out the relevant facts why he is entitled to confidentiality. … In my view none has been shown to exist.”

The judge also rejected Zuma’s claim that producing the transcripts would infringe on his right to a fair trial. He further held that the NPA, as an organ of state and constitutional body, had a duty to prosecute without fear, favour or prejudice while its officials were required to act with transparency and accountability — therefore it had a duty to explain the dropping of charges.

Mathopo concluded that the SCA order had not envisaged a blanket prohibition on disclosure, but on excluded matter the third respondent may have considered confidential or privileged. In the absence of any specific identification of protected material by the third respondent, he could not rely on the SCA order.

The contempt application was dismissed on the grounds that Jiba had to allow Zuma an opportunity to indicate objections, and thus had not been deliberately or wilfully non–complaint with the order. The contempt application was therefore dismissed. An order was made for Jiba to comply with the SCA order within five days. The judgment was handed down in August 2013 (within three weeks of being heard) and upheld by the SCA in Zuma v DA, a year later.

After 17 years working as an attorney, Mathopo was appointed to the Gauteng Division of the High Court in 2006 and to the Supreme Court of Appeal in 2015.

He acted in the final term of 2019 at the Constitutional Court. During that time he wrote the majority judgment in Tshabalala v S; Ntuli v S, which was handed down in December, after being heard in August that year.

This matter concerned whether the doctrine of common purpose applied to the crime of rape and if not, whether there was any rational basis for a distinction between rape and other crimes to which the doctrine applied.

The appellants, who had been convicted in the high court, had argued that rape could only be committed by a male using his own genitalia, and not by an individual whose presence and conduct  promoted, encouraged, or facilitated the offense taking place

Noting the conflicting case law and divergent findings on the matter at high court level Mathopa held that the Constitutional Court had jurisdiction as it was an arguable point of law.

“Given the scourge of rape in this country, in particular group rape, a resolution of this issue will have an impact beyond the present litigation and will not only affect the immediate parties, but it will give decisive direction to cases of a similar nature and is, therefore, a matter of general public importance,” he held.

Mathopa found the crime was not “unexpected, sudden or independent acts of one or more of the perpetrators which the others neither expected nor were aware of even after it happened.” Nor was it probable that the accused were unaware of what was happening or about to happen.

“It is necessary that the relationship between rape and power must be considered when analysing whether the doctrine applies to the common-law crime of rape. To characterise it simply as an act of a man inserting his genitalia into a female’s genitalia without her consent is unsustainable. In instances of group rape, as in this case, the mere presence of a group of men results in power and dominance being exerted over women victims,” Mathopa held.

Warning that jettisoning the doctrine would entrench unequal gendered power dynamics and encourage more violence against women Mathopa rejected an argument based on the absence of causation, holding instead: “The object and purpose of the doctrine is to overcome an otherwise unjust result which offends the legal convictions of the community, by removing the element of causation from criminal liability and replacing it, in appropriate circumstances, with imputing the deed … which caused the death (or other crime) to all the co-perpetrators. By parity of reasoning, there is no reason why the doctrine cannot apply with equal force to the common law crime of rape. … The applicants knowingly and with the requisite intention participated in the activities of the group and fully associated themselves with its criminal designs. It is disingenuous to now contend that because they did not physically penetrate the complainants they should not be found guilty on the basis of the doctrine.”

Mathopo concluded that the doctrine of common purpose applied to the crime of rape, and dismissed the appeal. Justice Sisi Khampepe and Acting Justice Margie Victor wrote separate concurring judgments.

The reported judgments on his CV include the 2010 high court matter Armich 159 Property Holdings v Eric Prudent TL Van Wessbeeck, the 2017 SCA case of Mohameds Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interest (Pty) Ltd and Print Media SA & SA National Editors Forum v Minister of Home Affairs and Publications Board in 2011. In the last case Mathopa founds that sections of the Films Publications Act was inconsistent with the Constitution because they required publications to be submitted to the board for classification before they could be lawfully distributed in the country. This declaration was later confirmed by the Constitutional Court.

Fifty-eight-year-old Mathopo holds a B.Proc from the University of the North (1985). He was nominated by the Black Lawyers Association of South Africa and is a member of the Rhema Church.

October 2021 JSC Interview:

Interview of Judge R S Mathopo by the JSC, October 2021, for a position on the Constitutional Court.

Judge R S Mathopo’s application was successful. He was nominated for appointment to the Constitutional Court..

April 2021 Interview: 

April 2021 Interview Synopsis:

At a few minutes under three hours, Supreme Court of Appeal (SCA) Judge Rammaka Mathopo’s interview assumed the breezy tone and plodding tempo of one of those art-house films which leaves one with the distinct feeling that nothing substantive would have been lost if it was a third of the length.

But the bar was set by Chief Justice Mogoeng Mogoeng who used the first hour of Mathopo’s interview to ask questions about the candidate’s experience of the SCA and its notoriously irascible seniors. A subject well-travelled during previous JSC sittings and interviews.

Mogoeng also questioned why the media did not “name and shame” these judges, yet appeared to fixate on “some of us [who] have things written about us all the time, even lies”?

Perhaps this was Mogoeng projecting his feelings on being critiqued by the media and the academy. Or maybe he was smarting because members of the SCA are often quietly critical of some of the judgments — especially commercial law matters — emanating from the Constitutional Court. Or maybe he just wanted to showcase the shower-head meets eating elephant hand actions that he patented so manically during his anti-Covid-19 vaccine rant a few months ago — and reproduced here.

Mathopo said he didn’t allow anyone to intimidate or “trample on my toes my head, or anything” because of his “activist” nature while the colleagues at the SCA also “had a fair idea of who was coming because my judgments [at high court level] preceded me.”

He said that while serving at the Gauteng High Court, the paucity of Black African judges at the SCA had “troubled” him and his colleagues who resolved to “deploy” candidates from that bench to contest SCA vacancies when they were advertised by the JSC.

“It was a result of that agitation that the doors were flung open,” said Mathopo of the tactical disruption which he felt was instrumental in leading to changes in the personnel at the appellate division.

On the media, Mathopo said the space was still not owned by Black Africans and because the “Top Six” were of a “particular colour” the “media and everyone else would shy away from exposing their darlings”.

When the marathon interview did turn to Mathopo’s jurisprudence, the appellate court judge was confident in the variety and substance of his judgements. These included his 2019 Constitutional Court majority in Tshabalala v S which he described as “seminal” for its finding that the doctrine of common purpose does apply to the common law crime of rape.

On the value of dissenting judgments, Mathopo said “we cannot muffle or muzzle colleagues from how they see the case… a dissent today may be the law tomorrow”.

During his interview Mathopo appeared to advocate for a diversity of perspectives on the Bench which he felt needed to reflect the demographic makeup of the country.

SCA deputy president Xola Petse pointed out to Mathopo that the current make-up of the Constitutional Court had “no white justices, no Black justices of Indian extraction” and no white females and asked the candidate whether, in his appointment, the JSC would be “advancing the dictates” of sections 174(2) of the Constitution which requires
the JSC to consider the demographics of the country in appointing judges?

Mathopo said his interpretation of Section 174(2) “does not make it obligatory to consider all other racial groups” when appointing to the Constitutional Court.

Mathopo was also asked about the mentoring role he has assumed to assist black female legal practitioners and junior judges (and commended by several commissioners, including two who had direct experience of this), his background of putting most of his siblings through university, and the kind of language used by appellate court judges who overturn judgments from lower courts.

For the latter he cited the SCA overturning of a high court decision by KZN Judge Chris Nicholson, who originally thrown out criminal charges against former president Jacob Zuma (then an ordinary citizen), as an example of a judgment using “language that its “not befitting of a judge”.