/ 2 February 2022

Chief justice interviews: Mbuyiseli Madlanga

Advocate Mbuyiseli Madlanga has been appointed to the Constitutional Court of South Africa.
Advocate Mbuyiseli Madlanga has been appointed to the Constitutional Court of South Africa.

Aspirant chief justice Mbuyiseli Madlanga on Tuesday said the right to criticise the judiciary was protected, constitutionally, under free speech, but added it should not reach the level where it turned into an attack that undermined the legitimacy of the institution and the rule of law itself.

“The criticism should never go to a level at which it will bring the courts to a state where they will no longer enjoy the respect that they should enjoy from the general populace, because once that stage is reached then one might just as well stay that the idea of the rule in South Africa has gone out through the window,” the constitutional court justice cautioned in his interview with the Judicial Service Commission (JSC).

“So the judiciary should continue to enjoy the legitimacy and the confidence that it should have in order for the rule of law to continue functioning properly.”

He continued: “As much as I accept that there should be criticism, it should be criticism, one, that is fact-based, and two, it should not be criticism that is for no other reason, while not being fact-based, calculated to bring the entire edifice of the judiciary into disrepute.” 

Madlanga then quoted former justices Ismail Mohamed and Johann Kriegler to add: “The judiciary does not have a purse; it does not have police; it does not have an army; it depends on the legitimacy that it enjoys, the confidence it enjoys.”

Criticism calculated to bring it into disrepute robbed the institution of the one thing that made “it possible for it to operate,” he added.

Madlanga declined to define the difference between criticism and attack in semantic terms, despite a query by Justice Minister Ronald Lamola, and suggested instead that the substance, and intent, should be considered.

The question was predictable given the controversy over Tourism Minister Lindiwe Sisulu’s attack on judges, in which she called them “mentally colonised”. Madlanga offered his support, indirectly, for fellow candidate and Acting Chief Justice Raymond Zondo’s public condemnation of the minister’s remarks, which she has refused to withdraw.

He conceded that there were different approaches as to dealing with attack, and one was for the chief justice to lead the judiciary, as former chief justice Mogoeng Mogoeng did years ago, to approach the president to discuss the matter at the highest level between arms of the state.

The other, he said, was to deal with the matter publicly and directly, without consulting the executive. This is what Zondo did in January.

“A leader of the court may be, at times — we cannot run to the media all the time — but there is a lot of learning that says under certain circumstances … it may be perfectly proper for the head of the judiciary under certain circumstances to go out there and address head-on the unacceptable criticisms.”

Madlanga ventured that the question of unfounded criticism went to the heart of the independence of the judiciary before indirectly commenting on the still-current issue of Mogoeng’s remarks on Israel, on which the Judicial Conduct Committee has rejected an appeal to its directive that he apologise.

Judges should steer clear of commenting on political issues, Madlanga said.

“This is easier said than done, as the expression goes. The Constitution is such that there are lots of political implications around it. The very idea that it lies with the courts to invalidate acts of parliament, acts of parliament come about as a result of a political process, the very idea that the courts can invalidate the acts of the executive, starting from the president to ministers.”

Socioeconomic rights and the rationality principle

But he said the nature of the tension was more subtle than this still, if one were to look at socioeconomic rights afforded protection under the Constitution.

“There will be policy-laden issues. Ordinarily when you take the rationality principle, you don’t question the reasonableness of the conduct of parliament, for example, or whoever the actor was, but when you come to socioeconomic rights, it is inbuilt in those rights that you actually look at what is reasonable,” Madlanga said.

“So a court can actually question the reasonableness of what another arm of state — parliament — or even the executive, has done with regard to something that impacts on socioeconomic rights,” he added. “I am touching on all of this in the context of judges commenting on political matters. 

“In the context of an adjudicative process and deciding whether or not the conduct of parliament, the conduct of the executive or even issues arising from whether what was done by the other arms of state in the context of socioeconomic rights is reasonable, the question of the political is there throughout.

“Therefore in that context, because you are adjudicating a live case before you … of course you are concerned with ‘What does the Constitution say?’ and if where it takes you is to knock out or invalidate a political act, so be it. It is fine, that is our constitutional architecture.”

He added that “outside of that, that is where issues arise”. Fortunately, Madlanga added, the judicial code of conduct was plain in saying “steer clear of that”.

Race and representivity

Predictably too, he was questioned about the absence of white judges in recent years at the constitutional court. He quipped that he could bat the question back to the JSC, which is facing strong criticism for overlooking senior counsel David Unterhalter and Alan Dodson twice last year when making recommendations for appointment to the apex court.

More seriously, he added that though the Constitution did not prescribe numbers on representivity, it would be preferable if the composition of the court sent a message that engendered a sense of belonging among all South Africans.

Of all four candidates — the others are Zondo, Gauteng Judge President Dunstan Mlambo and supreme court of appeal president Mandisa Maya — Madlanga faces the perceived obstacle of not having a strong record as an administrator at a time when the apex court is very much in need of it.

He responded to this by saying in his view a chief justice was first and foremost a judge who could lead from the front, rather than a “super secretary general” micromanaging the running of the judiciary. 

But he dealt at some length with measures he had proposed at the constitutional court to improve its functioning, in particular dealing with long delays in delivering rulings, which he termed “the elephant in the room”.

He said this was largely the result of a duty roster system which assigned two colleagues at a time to handle a “deluge” of new applications that now ran into the hundreds every year.

Doing away with it has relieved the inevitable bottleneck, and his aim, if appointed, would be to ensure that judgments were delivered within a deadline of six months.

Access to justice

Madlanga is known for a preoccupation with access to justice — it ran like a thread through his interview — and dwelled on the drawbacks of the constitutional provision that the court was quorate with eight judges. 

He said if appointed he would motivate for a constitutional or statutory amendment to change the figure from eight to an uneven number to avoid split decisions that effectively saw litigants leave empty-handed.

It was of concern that parties came to the highest court for relief or direction only to meet with this unsatisfactory outcome, he stressed.

As expected, he was forthcoming on transformation, qualifying himself as a feminist and saying this perspective was imperative to correct insensitivity on the part of the bench to the lived experience of women, and he hoped that for a start the treatment of rape survivors would improve. 

A second factor considered to count against Madlanga is the fact that he would be able to serve three years and six months in the post, given the length of his tenure at the constitutional court to date.

He dismissed this by terming that period “a very long time”. Madlanga is considered the most intellectual of the four candidates, with a highly prolific output. He has penned 46 judgments in the past eight years and is a firm favourite among fellow jurists.