Justice Nonkosi Mhlantla
“I was compelled to fight and assert myself.”
Justice Nonkosi Mhlantla is committed to breaking down barriers of race and gender in the legal sphere. From being the first woman judge in her hometown of Port Elizabeth and only the third in the province, to sitting on the bench of the Constitutional Court of South Africa, her resilience continues to drive her profound contributions to the development of South Africa’s democracy.
Early Life and Career
Nonkosi Zoliswa Mhlantla was born in Kwazakhele, Port Elizabeth. Along with the socio-political context in which she grew up, she regards her mother, a nursing sister, and her late father, whose own legal studies were halted due to financial constraints, as the backdrop of – and inspiration for – her legal career.
Mhlantla had the privilege of studying law at the University of Limpopo, formerly known as Turfloop, where she received her B Proc degree in 1987. In grateful acknowledgement of the sacrifice her mother made to pay for her studies, Mhlantla worked as a cleaner during her student days to assist with the financial burden.
After completing her degree, Mhlantla was articled at a law firm in Pretoria. She later completed her articles in Port Elizabeth where she eventually opened her first practice. Her tenacity allowed her to overcome the bias of colleagues and potential clients against the idea of a black female attorney and gradually she managed to build a viable legal practice. She also drew support from organisations such as the National Association of Democratic Lawyers (NADEL). Mhlantla nonetheless found it necessary to pursue other business ventures simultaneously, in particular selling household goods like crockery and pottery, which later helped to pay for her first car.
Mhlantla was appointed as a Judge of the Eastern Cape High Court in 2002. She served on the Supreme Court of Appeal from 2008 to 2015.
Appointment to the Constitutional Court
It’s a daunting task … I’m going to be serving the highest court in the land.
Nonkosi Mhlantla
Justice of the Constitutional Court
After spending four full terms as an Acting Judge on the Constitutional Court from 2013, Mhlantla was permanently appointed in December 2015. While she appreciates her position on the Court, she acknowledges that much more work is still needed to ensure that women and gender non-conforming people are provided a deserved place in the legal world.
Transformation in the profession should not be a disconnected exercise of opportunistic window dressing to appease the gods of affirmative action, but about profoundly removing entrenched barriers, structures, policies, belief systems, prejudices and biases so that women and gender minorities are given equal opportunities to flourish and develop their inherent talents.
Nonkosi Mhlantla
Justice of the Constitutional Court
Judgments of Interest
Centre for Child Law and Others v Media 24 Limited and Others (2019)
Justice Mhlantla penned this Constitutional Court judgment which implicated the constitutionality of section 154(3) of the Criminal Procedure Act that deals with the anonymity of child accused and witnesses in criminal proceedings. The Centre for Child Law challenged the constitutionality of section 154(3) on several grounds, including failing to provide protection for child victims of crime, as well as failure to provide continued protection for children once they turn 18 years of age.
The Constitutional Court’s judgment declared section 154(3) unconstitutional for its failure to extend identity protection to child victims of crimes, as well as its failure to offer ongoing protection of anonymity past the age of 18. It held that the overarching purpose of section 154(3) is child protection; protection from the potentially harmful effects of the publication of their names and identities due to being implicated in criminal proceedings. Since this protection is only afforded to a child accused and witnesses, there is a lacuna in the law as it pertains to protecting child victims in criminal proceedings.
Justice Mhlantla stated in the judgment that the exclusion of child victims in section 154(3) limited the right to equality, as it constitutes an arbitrary differentiation that does not offer equal protection and benefit of the law. The judgment also found that the failure to provide ongoing protection unreasonably and unjustifiably infringes on the best interests of the child and their rights to privacy and dignity.
Justice Mhlantla’s judgment includes powerful statements that go to the heart of the relationship between the law and the lived realities of the people in South Africa.
There should be no shame in surviving or witnessing a crime. But unfortunately, society at large has in many ways betrayed those who have survived or witnessed violence, be it sexual, physical or psychological … [T]his Court should do all it can to avoid propagating stigmas, but it should respond to the current needs of society instead of applying only a normative approach to shame and stigma.
In the age of social media, the immediate and far-reaching dissemination of information means that disclosure and the choice to disclose, if and when a person is ready to do so, is of practical significance. However, a default position against anonymity seems to only further stigmatise and oppress those who live at those same intersecting axes of discrimination that often brought them into contact with a crime either as accused, victims or witnesses in the first place.
Justice Nonkosi Mhlantla
the Centre for Child Law judgment, 4 December 2019
Dladla and Another v City of Johannesburg and Others (2018)
This case dealt with the constitutionality of homeless shelter rules. The lockout rule of homeless shelters requires the homeless to leave the shelter during the day. Another rule prohibited men and women from living together while a further rule separated children from their guardians. In a judgment penned by Justice Mhlantla, the Constitutional Court held that the limitations of the rights of homeless people through these rules were not reasonable and justifiable as required by the Constitution and were therefore unconstitutional.
The lockout and family separation rules limit the applicants’ right to dignity. The lockout rule limits the right to dignity because it is cruel, condescending and degrading.
The right to dignity includes the right to family life. This right in turn consists of the right to marry and the right to raise a family. The family separation rule creates a vast chasm – between parents and children, between partners and between siblings – where there should be only intimacy and love.
Justice Nonkosi Mhlantla
the Dladla judgment, 1 December 2017
Family and Personal Life
Mhlantla is married to Khaya Ndimba and they have one daughter and one granddaughter. She balances her time between Port Elizabeth with her family and Johannesburg professionally.
In the words of others
Working for Justice Mhlantla was a truly empowering experience. She emulates what it means to be a phenomenal woman. Justice Mhlantla has taught me many things about the law for which I will always be grateful, but on a more personal note she has shown me what it really means to be a strong and independent woman.
In the face of adversity, she stands tall, both for herself and for those around her. She has a beautiful capacity to solve both complex legal problems as well as the more personal and sensitive ones.
Her clerks are her children and she treats us all with dignity and respect and wholeheartedly invests in us and our futures.
Tina Power
former law clerk to Justice Mhlantla
Justice Mhlantla demonstrated astuteness as a jurist, not only in the manner in which she produced her judgment, but her clear demonstration of social consciousness … together with her professionalism, timeous delivery of judgment and her humility.
National Association of Democratic Lawyers (NADEL)
I have the privilege of sitting with Justice Mhlantla as a trustee on the Constitutional Court Trust. Knowing that she is from Port Elizabeth, where my extended family lives, and knowing how hard it is to go from a small town to the nation’s attention as a Justice on the Constitutional Court – I cannot help but be inspired by Justice Mhlantla. I know so many young people from Port Elizabeth find incredible motivation from her hard work and achievement.
Lwando Xaso
former law clerk of the Constitutional Court
