1 February 2022 

Constitutional Court Judge Mbuyiseli Madlanga, who is vying for the post of Chief Justice, says the Court needs to speed up the pace of judgments. Archive photo: Ashraf Hendricks

The Constitutional Court takes too long to hand down its judgments, Constitutional Court Judge Mbuyiseli Madlanga, who is vying for the position of Chief Justice, has conceded. “Justice delayed is justice denied”, he acknowledged.

“I accept that, without question,” Madlanga said during his interview by the Judicial Services Commission on Tuesday. “It is valid, constructive criticism,” he said, agreeing with commissioner Julius Malema that this should not be seen as an attack on the court.

Madlanga, who says he is a “feminist” who believes in promoting the dignity of women, the LGBTQI+ community and the use of preferred pronouns, is the first of four candidates to be interviewed for the top job.

Madlanga was nominated along with Justice Mandisa Maya, Judge President Dunstan Mlambo, and Acting Chief Justice Raymond Zondo by President Cyril Ramaphosa after a public consultation process following the retirement in October last year of Chief Justice Mogoeng Mogoeng.

The issue of delayed judgments was first raised by chair, Supreme Court of Appeal (SCA) Acting President Xola Petse, who commented that the court had been “under attack” because of the extraordinarily long delays in delivering judgments, some of which were said to be “replete with incoherence”.

Madlanga said the court had been swamped with applications - growing to almost 400 last year - since 2013 when a Constitutional amendment changed the court’s jurisdiction from dealing only with constitutional issues to general issues.

“It is a large number. And unlike the Supreme Court of Appeal, we do not sit in panels. Eleven judges, subject to a quorum of eight, all must participate in each and every decision.”

He said work vetting new applications - sometimes as many as 20 a week - was being more evenly distributed among the judges so that they did not get bogged down. Other changes were in the pipeline and he believed that judgments would be delivered much more quickly, the aim being within five to six months after hearing.

Regarding the issue of “bad judgments”, he said he had personally been criticised by an academic over one judgment he wrote. “There was some merit but it was overboard, it was a gratuitous insult. I will accept my mistakes, but we are all human.”

Dismantle patriarchy

Madlanga, who hails from the former Transkei and is a father of seven, then championed the rights of women and the LGBTQI+ communities, saying courts needed to afford these groups more dignity.

He said the judiciary needed to strive to dismantle patriarchy and misogyny.

“We can reach that, if in our judgments we consciously embrace the truism that women are equal to men, and that several phenomena affect women in a myriad of ways not readily discernible to men.

“I dealt with a number of cases which display these attitudes of men towards women who appear before our courts as witnesses, in particular, those women who are rape survivors.

“A related aspect is the rights, interests and dignity of LGBTQ+ people. When I meet counsel, when I see somebody who looks like a man - and I am sure most of my colleagues do the same - I take that person to be a man, and say Mr So and So…but I have learnt this is a sensitive issue to the community.

“And maybe it is time the judiciary considers inquiring from a practitioner, or even a litigant, or a witness, what their preferred title is, or even if no title at all.”

He said his judgments were proof of his gender sensitivity.

Justice Minister Ronald Lamola asked Madlanga for clarity on his position about criticism of the judiciary.

“What is deemed or viewed as constructive criticism, personal attack or even insults and who should determine it?” the Minister asked.

Madlanga said it depended on context and content and the impact of what was being said on the reputation of the judiciary and on the rule of law.

Constitutional reform

Madlanga said the present quorum of the court - a minimum of eight judges and maximum of 13 - was problematic and he believed that constitutional reform was necessary to stop split judgments.

He said it was “an unfortunate outcome” for litigants when the eight judges were evenly divided. “The effect is that the judgment being appealed against stands. That is an injustice. I want to approach the minister, if appointed, to move that there be a constitutional amendment.”

Asked about diversity on the court, and the fact that there was not a single white male or female judge and the last appointment of a white person was 12 years ago, Madlanga said: “There is a point to be made about all of us, as South Africans, being made to feel that we all belong. It would send a good signal if there could be an appointment from that sector of our community.”

He said if appointed he would consult with all judicial heads at all levels in an attempt to change certain rules of court, including the compulsory filing of 25 copies of all documents in Constitutional Court matters, even if they had been filed electronically.

He would also encourage more mediation in matters which could be settled, in order to free up more court time for those which couldn’t. And he would “get to the bottom” of why, in commercial matters, wealthy, “for the most part white” litigants preferred private arbitration, apparently because they were not comfortable about having their cases heard by black judges.

Madlanga has served on the Constitutional Court since 2013. He is set to retire in July 2025, a fact which some say will count against him in the race for Chief Justice. But he was adamant during the interview that three years was enough time for him to make a difference and to turn the judiciary into “a well-oiled machine”, delivering justice on time.

“There are examples of people who can turn around a court in less than a year. The Judge President of the Eastern Cape is one of them.”

SCA President Mandisa Maya, Gauteng Judge President Dunston Mlambo and Acting Chief Justice Raymond Zondo will be interviewed over the next three days.

This article first appeared on GroundUp.