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Judge F E (Fikile) Mokgohloa

Capacity: Judge
Appointed to the Supreme Court of Appeal: 2019
Further appointments: Appointed as DJP Limpopo 2016
First appointed as a judge: 17-11-2008 to the Limpopo High Court

Key judgments: (1) Ximba v S (1171/18) [2019] ZASCA 111 (16 September 2019) ; (2) Marion Smith v Mountain Oaks Winery (Pty) Ltd & another (1171/18) [2019] ZASCA 123 (26 September 2019) 

Gender: Female
Ethnicity: African

Candidate Bio:

Appointed as Deputy Judge President of the Limpopo Division of the High Court in 2016, Judge Fikile Mokgohloa, in that interview, described her strong point as “listening” to other people. She conceded that “getting a bit irritated” when things are not done or people shirked professional responsibility, especially in relation to the efficient running of her court, was her weakness.

In a judgment that should render optimism to communities across the country who battle to receive documents and information pertinent to their lives and service delivery from municipalities looking to ride roughshod over their rights, Mokgohloa has made a punitive costs orders against attempts at such opaque and obstructionist behaviour.

In handing down the 2016 judgment in V & V Consulting (Pty) Ltd v Umlalazi Local Municipality, Mokgohloa found the municipality had displayed obstructive behaviour that “flies in the face of section 32 of the Constitution, the letter and spirit of PAIA [The Promotion of Access to Information Act] and descent [sic] values of government. I find that the first respondent’s conduct of failing to respond to the applicant’s request was done with the intention to frustrate the applicant’s right to explore all avenues to have access of the information requested,” she wrote.

The applicant sought access to certain documents in respect of the design and supervision of a road rehabilitation project in the central business district of Eshowe, a town in northern KwaZulu-Natal.

Mogkohloa rejected several points in limine, including the municpality’s suggestion that the right to request information under PAIA was limited to a requester being a registered consultant and participating in the tender.

“[T]he importance of access to information held by a public body as a means to secure accountability and transparency justifies the approach adopted in section 32 (1)(a) of the Bill of Rights namely that, unless one of the specifically enumerated grounds of refusal obtains, citizens are entitled to information held by a public body as a matter of right. This is so regardless of the reasons for which access is sought and regardless of what the public body believes those reasons to be.”

Mokgohloa held that grounds for refusal under PAIA had to be understood in the context of the legislative scheme which sought to balance “access to information, a third party’s right to privacy and to protect its commercial interest in a manner which is constitutionally defensible in terms of the limitations.”

An argument that applicant had to show it had a right or interest in the information requested was rejected, as such provision was inapplicable to records in the possession of public bodies.

Mokgohloa found the municipality’s behaviour sufficiently egregious to justify a punitive costs order. The application was granted with costs on a scale as between attorney and client.

Mokgohloa has dealt with interesting cases regarding the cultural and religious rights that have emerged after the introduction of South Africa’s constitutional order, with its wider sets of freedoms and recognitions.

In the M v J case, a couple married under Islamic law, but not registered in terms of the Marriage Act were heading for Splitsville, with the wife seeking custody of their two children, maintenance and contribution towards legal costs before the finalisation of divorce proceedings. The husband had objected, arguing that no marriage existed since it had already been terminated by his pronouncing talaq (the unilateral pronunciation by the husband that he is divorcing his wife, uttered three times).

She found that the wife “cannot be precluded from obtaining relief in terms of [the Marriage Act] by virtue of her Muslim marriage, irrespective of whether the respondent pronounced a talaq or not.”

The wife was given custody of the two children, and the husband was ordered to pay maintenance of R20 000 per month and to contribute R15 000 to her legal costs.

Mokgohloa was well respected in the KZN division, receiving 14 nominations from her colleagues for the position of KwaZulu-Natal deputy judge in 2012. Then, former Judge President Chiman Patel lauded her for her tremendous work ethic.

Mokgohloa holds a B.Juris and an LLB from the University of the North West. She worked as an attorney through the 90s before acting stints as a magistrate and judge. From her appointment in 2008, she served eight years as a judge at the KwaZulu-Natal High Court before moving to the Limpopo Bench in January 2016 and being appointed deputy judge president of the division a few months later.

April 2019 Interview:

April 2019 Interview Synopsis:

The deputy judge president of the Limpopo division of the high court, Fikile Mokgohloa’s organisational skills will be missed after her recommended appointment to the Supreme Court of Appeal (SCA) following her successful April 2019 interview.

SCA President, Mandisa Maya, told the commission of her “struggles” to free Mokgohloa to act at the appeal court since her boss in Limpopo, Judge President Ephraim Makgoba, found her so indispensable.

Maya described Mokgohloa as a “sensible, diligent and studious judge”.

While the Advocates for Transformation (AFT) in KwaZulu-Natal — where she had worked at the high court for a period — had supported her appointment, the National Association of Democratic Lawyers (Nadel) had made submissions to the commission that she required more time at the high court to formulate her judgments and improve her writing skills.

Mokgohloa said other law bodies had analysed her judgments and had not “found anything negative about them… I have acted at the SCA and I am ready,” she said.

Addressing a complaint from an attorney’s firm accusing her of denying justice for a client’s minor child in a Road Accident Fund (RAF) settlement, Mokgohloa said she had not been satisfied by the settlement and had therefore refused to rubber-stamp it:

“It becomes my order and then I must live with it,” she told the commission.

On her judicial position, Mokgohloa said she was a judge who “is prone to judicial activism”. Her interview lasted about 24 minutes.

April 2016 Interview:

April 2016 Interview Synopsis:

Successfully nominated for appointment, Mokgohloa’s driven, no-nonsense approach to life and work was palpable during her interview before the Judicial Service Commission.

Asked by the ANC’s Thandi Modise to identify her weaknesses and strengths, the KwaZulu-Natal High Court judge responded that “listening” to other people was her strong point, while “getting a bit irritated” when things are not done or people shirked professional responsibility, especially in relation to the efficient running of her court, was her weakness.

The answer received an approving nod from Modise who also revealed that she was of a similar exacting disposition when it came to work.

Mokgohloa’s views on the patriarchy and the “customary practises” rife in Limpopo, including the capturing of “very young, vulnerable women” as ‘candle wives’ was tested during an interview where she impressed.

Modise also pressed Mokgohloa on the sexism and ageism within the legal profession. She said while she was very aware of it, she was “never intimidated by them”.