Justice Mbuyiseli Madlanga during the Constitutional Court judgement on the appointment of Shaun Abrahams as National Director of Public Prosecutions (NDPP) on August 13, 2018 in Johannesburg, South Africa. (Photo by Gallo Images / Netwerk24 / Deaan Vivier)
All four shortlisted candidates to become the country’s next chief justice have their fans, but perhaps only sitting constitutional court justice, Mbuyiseli Madlanga, can claim something of a cult following with adherents exchanging their favourite lines from his judgments on Twitter.
Young self-described law nerds have been pleading the case for a Madlanga court on social media, memes included, for months, before he was formally nominated and even before Mogoeng Mogoeng left office a few months early on overdue leave.
It is now more than 100 days since that happened and the anticipation as to who the president will appoint is arguably greater than in 2011 when then president Jacob Zuma overlooked the obvious candidate in deputy chief justice Dikgang Moseneke.
In the legal community, there is concern that the Constitutional Court needs someone who could restore faith in its intellectual rigour while the judiciary requires someone who can deal wisely with the politics of the day.
When rumour had it last year that Madlanga was not ready to avail himself, a colleague messaged him for reassurance that it was not true. A peer commented that Madlanga is favoured by lawyers because “intellectually he is far superior” and his integrity and work ethic admirable.
Land lawyer Elisha Kunene said Madlanga had proven, in the absence of Mogoeng and Deputy Chief Justice Raymond Zondo, that he is able to lead the apex court.
“It is difficult to imagine a more respected jurist in the profession. He is a special and rare talent. Uniquely qualified to guide the court at this moment. He should continue the good work. The court needs it. We all do.”
Zuma’s toxic legacy cannot be totally absent from President Cyril Ramaphosa’s considerations, more so since Tourism Minister Lindiwe Sisulu borrowed from it to launch an indecent attack on the bench.
The Gauteng high court and the state capture inquiry have in different ways had to pronounce on the excesses of that era, making Zondo and to a lesser extent Gauteng Judge President Dunstan Mlambo familiar names, not just for their findings against Zuma but, unfairly, for the invective he has hurled at them.
At times, neither have worn the insult lightly.
Madlanga penned the 2018 ruling that set aside Zuma’s appointment of Shaun Abrahams as head of public prosecutions because it flowed from his unlawful suspension and sacking of Mxolisi Nxasana, with a R17-million sendoff, writing that the former president “was bent on getting rid of Mr Nxasana by whatever means he could muster. His was an approach that kept on mutating: it was first a stick; then a carrot; a stick once more; and eventually a carrot.”
But he has been able to stay out of the fray and focus on writing the limpid constitutional court judgments — 46 to date — that make the strongest argument for his candidacy.
“Someone who has put their head down and done their job as a judge, could be the refresher we need, the breathing space for the court to rebuild and to minimise the attacks on it,” said Dan Mafora, a former clerk for Madlanga.
“Mlambo and Zondo both come with baggage”, he added, noting that the latter will likely for years to come face legal challenge to his report on state capture.
An advocate at the Cape Bar said Madlanga’s rulings reflect both a brilliant mind that remains rooted in reality, “conscious of how the ideas of the court and of justice play in the real world”, and dependable impartiality.
“Our court has politics … if you look at Judge Madlanga, he has never been in a camp, he does not always agree with the same judges. He has an independent-mindedness which is important and I think that would also come out when you are dealing with political issues, when the judiciary comes under attack.”
Like all who have worked with Madlanga, he reports that he is kind and unassuming.
“Those are personal attributes, but I think if you are humble, that helps make you a good leader.”
In 2015, Madlanga was alone in concurring with the judgment of Justice Johann van der Westhuizen in the so-called SMS case, concerning the Democratic Alliance message to voters in the wake of the Public Protector’s Nkandla report that it “shows how Zuma stole your money for his R246-million home.”
In the main, but minority, judgment Zondo concluded that the statement that the report showed how Zuma “stole” money was false. A joint judgment by justices Edwin Cameron, Johan Froneman and Sisi Khampepe found that the DA had expressed an “opinion” and that an opinion cannot be false. With the concurrence of Madlanga, Van der Westhuizen concluded that even an opinion could unfairly influence an election, but that — based on the report — it was not false to opine that Zuma “stole” money.
In 2018, Madlanga concurred with a dissenting judgment by Justice Chris Jafta in the Kirland case, but months later relied on the reasoning of Cameron’s majority judgment to reach the conclusion he did in the Abrahams case.
Mafora said this sense of institutional discipline was lacking recently when Jafta and Justice Leona Theron reiterated their rejection of the majority in the judgement convicting Zuma of contempt of court in their dissenting judgments on his later rescission application.
“That obviously creates animosity and conditions that are not great for collegiality,” he said.
“Madlanga understands that the court needs to adhere to its own rules. If judgments are binding on later courts, then you should accept, even if you disagreed in a previous case, that when another issue implicating that principle arises you are bound to apply the rule as established earlier.
“We have seen cracks among the justices, a drift as to why this is important for the legitimacy of the institution.”
It happens that lawyers may whisper of a well-written ruling that they detect the hand of a talented law clerk, but Mafora said Madlanga’s judgments are his own, down to the last punctuation mark.
“Obviously we would discuss and then he would say, please prepare a first draft. The only things of that first draft that you will see remain in the judgement is the facts and the litigation history, everything else is his, from the placement of a comma to what goes in the footnotes, he is very particular about how he writes, what he writes.”
“Definitely one of his favourite parts of the job is the writing process and he takes great, great care.”
The elegance is not pretentious, he added, but on the contrary meant to make what is legally complex plain and accessible.
“He values clear language … and that is something we need given how important the court’s judgments are and the increased public interest in the work it does.
“He would often have conversations with us in his native Xhosa and he would have very complex arguments about where he was leaning in cases. That struck me as something that displayed an incredible level of intellect, to be able to take concepts that are very high-minded and translate them, not only into simple English, but into a native language which is completely academically underdeveloped. It speaks to his ability to translate very difficult ideas.”
Madlanga worked as an interpreter at the magistrate’s court in Mount Frere in his final year at law school and in 1993 wrote a paper pleading for better training for court translators because language barriers can obstruct justice.
Similarly, he has argued that more diversity on the bench will enhance faith in its ability to fairly enforce the rule of law and that patriarchy and misogyny have tainted the law, because judicial officers grow up in an environment where these persist, leading them to interpret neutral laws with a mindset that was anything but.
“The men’s perspective may even result in biased factual assessments, as people – including judicial officers – tend to think in terms of stories they are familiar with, and fill in the gaps based on their own experience of the world,” he wrote in the South African Judicial Education Journal in 2020.
“The gendered, masculine view of the law often ignores human relationships and their interdependence, which, to a greater extent, are experienced by women through, for example, pregnancy, childbirth, nurturing and caregiving,” he continued, noting that transgender men may also experience pregnancy and childbirth.
“Needless to say, something must be done.”
The General Council of the Bar, in its submission to the Judicial Service Commission (JSC) on the four candidates, said that with his 2019 judgment in Bwanya v Master of the High Court, Cape Town and Others, Madlanga heeded his own call and displayed a boldness that may make for “further transformative justice” out of Braamfontein if he were chief justice.
The case saw a challenge to the constitutionality of the Maintenance of Surviving Spouses Act as it excluded permanent heterosexual life partners from claiming maintenance from the estates of their deceased partners. The applicant argued that this limited her right not to be unfairly discriminated against on the ground of marital status and her right to dignity.
Madlanga upheld the challenge, though it had been rendered moot by the fact that she had accepted a settlement.
“It cannot be gainsaid that the constitutional challenge is of great import. It affects a substantial number of South Africans, particularly vulnerable women.”
Much has been written about Mogoeng’s insistence that it is fair for the law to reserve some privileges for marriage alone because it was a free choice. Here Madlanga argues that for women the choice may often be illusory for reasons that include lack of bargaining power in a relationship and financial dependence on a man who earns more.
“The first two reasons typify what is to be expected in a society that is dominated by men in virtually all areas of human endeavour. And life is not so mechanical that one may ask why, instead of walking away, women stay in permanent life partnerships if — in some of them — it is men that do not want to get married. Much as it may not take much for some to walk away, that is not necessarily how life works. A woman may have to be content with what in essence is the man’s choice.”
In DE v RH, Madlanga abolished delictual liability for adultery in South African law, writing with a passing reference to Henry VIII that the concept of punitive damage claims for infidelity was deeply rooted in patriarchal notions of women as their husbands’ property.
In a rare interview, Madlanga, the country’s youngest ever judge at the time when he was first appointed to the bench at 34, cryptically offered that his judicial philosophy turned more on justice than law.
Mafora said this can make for a profound inquiry even about the impact of a procedural rule, like that on default judgments against absent parties, on a constitutional right.
“He has a very particular vision of the constitution and his thinking around the law emphasises this idea of ultimately doing substantive justice to the parties before him, and this isn’t limited to instances where concrete constitutional rights are affected but extends to how a reading of a procedural rule can facilitate an injustice.
“In his thinking around rights, and what they are meant to serve, he is preoccupied with how we can ensure greater participation, greater access in the democratic space.”
This is evident in New Nation Movement NPC and Others v President of the Republic and Others. Madlanga dismissed the speaker’s argument that electoral reform was the preserve of parliament and the subject of an ongoing process. There was no process, he said, “and we do not know if there will be one”, and found that the Electoral Act was unconstitutional in as far as it barred independent candidates from standing for the national and provincial legislatures.
The JSC will interview the four candidates over four days next week before reporting to the president. There may be calls for it to release the record of its deliberations.
This has only happened twice, incidentally the first time in 2018 after Madlanga ruled that the minutes be released to the Helen Suzman Foundation when it challenged recommendations for appointment to the Western Cape high court.
“I would find it odd that JSC members would be such ‘timorous fainthearts’ that they would clam up at the prospect that views they express during deliberations could be divulged,” he wrote.
The issue remains current as concerns of political bias at the JSC mount but the ruling does not apply here and Ramaphosa is not bound by the commission’s recommendation. Those close to him insist on the need for the next head of the highest court to have a proven record as an administrator and lean towards Mlambo.
The ANC caucus is understood, at a time when the ruling party’s deployment committee has been exposed as trying to dictate judicial appointments, to prefer supreme court of appeal president Justice Mandisa Maya.
Should Ramaphosa name her, this would come with the historical distinction of appointing the first woman to head the judiciary and sidestep the need for a close reading of the case law.
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