Justice Mbuyiseli Madlanga
“The importance of emphasising freedom within our context cannot be understated. Freedom cannot be disassociated from liberation from our colonial and apartheid past. So, in order for the potential of all South Africans, black and white, to be truly realised, the social and economic structures of apartheid society must be undone.”
Justice Mbuyiseli Madlanga’s practice and ethos as an advocate has reflected his longstanding commitment to human rights. As one of the youngest judges to be appointed in South Africa, Madlanga has made his mark on the judiciary. He is particularly passionate about the transformation of the judiciary in order to develop the country’s justice system.
Early Life and Career
Mbuyiseli Russel Madlanga was born in 1962 in Njijini, a small village outside the town of Mount Frere in the Eastern Cape. After he matriculated from Mariazell High School in Matatiele, he enrolled for a B Juris Degree with a bursary at Walter Sisulu University (formerly, the University of Transkei) in 1980. The following year he was awarded the Juta Law Prize for best law student. During his final year, Madlanga worked part-time as an interpreter at the Mount Frere Magistrate’s Court. While employed there, he was politically active and the close friend of several anti-apartheid activists.
It was my late father who triggered in me an interest in law. In my last year of high school he mentioned the possibility that, if I studied law, I might end up becoming a judge. The idea appealed to me and I registered for a law degree the following year, and I was hooked.
Mbuyiseli Madlanga
Justice of the Constitutional Court
Working at the magistrate’s office … We used to have Wednesday meetings … and in one of them, the head of the office went so far as to say, if somebody comes with a bail application in matters involving the security of the state, you should just refuse bail. And I stuck my hand up and I said, if a judicial officer is worth his or her or salt, there is no way that he or she can [do that] … It would be a total, total miscarriage of justice. He came down on me but I did not back down.
Mbuyiseli Madlanga
Justice of the Constitutional Court
In 1986, Madlanga completed his LLB at Rhodes University and became a lecturer in customary law, the law of delict, and advanced law of contract at what was then called the University of Transkei. Two years later he started his LLM studies at the University of Notre Dame in Indiana, USA, on the Bradlow Notre Dame Human Rights Law Scholarship. Madlanga completed his LLM in 1990 in Human Rights and Constitutional Law which he received cum laude. After this, he interned for Amnesty International in Washington DC.
Returning to South Africa in 1991, Madlanga served his pupillage in Johannesburg. He opened his practice as an advocate in Mthatha. At the invitation of the Judge President of the Mthatha High Court, Madlanga was elevated to the bench and accepted an acting appointment as a judge. In 1996 he was permanently appointed as a judge of the High Court in Mthatha, becoming the youngest judge in South Africa at the time. Shortly after this, he was appointed as an acting judge of appeal at the Supreme Court of Appeal (SCA). However, this was cut short by his appointment to act as the Judge President of the Mthatha High Court.
One always believed that there would be constitutional change which of course would bring about constitutional democracy, but whether or not that would happen during one’s lifetime, one was not sure at all of that. When I became an advocate, I did not in the least think that I would ever become a judge, not at all.
Mbuyiseli Madlanga
Justice of the Constitutional Court
Madlanga returned to private practice as an advocate in Mthatha and Johannesburg, with the prestigious status of senior counsel. Notably, he represented the Republic of South Africa at The Hague in a case regarding the Israeli West Bank barrier.
Madlanga was also appointed as the Chairperson of the Exchange Control Amnesty Unit. He served as evidence leader at both the commission of inquiry into the fitness of Bheki Cele to hold office as National Police Commissioner, and at the Marikana Commission of Inquiry. On appointment by the President, Madlanga became a member of the Competition Tribunal for 9 years, where he served as Deputy Chairperson between 2009 and 2012. Madlanga was appointed as a member of the Judicial Service Commission (JSC) in 2010 and served until he accepted nomination to the Constitutional Court.
Appointment to the Constitutional Court
Madlanga became an acting judge of the Constitutional Court in 2000 upon the late Arthur Chaskalson’s invitation. However, in May 2001 Madlanga resigned from the bench due to personal reasons.
I still remember where I was. I was on Circuit Court in Bizana, and I still remember I was in my hotel room at the time, and I got a telephone call from Arthur Chaskalson, who was then the President of this Court, not Chief Justice. And he asked whether or not I would be willing to come and act. So I accepted the invitation.
Mbuyiseli Madlanga
Justice of the Constitutional Court
In August 2013 Madlanga was appointed permanently by President Jacob Zuma as a Justice of the Constitutional Court to replace Justice Zak Yacoob.
Sitting on the Bench of the highest court in the country is not only a daunting task but a challenge. Challenges always appeal to me.
Mbuyiseli Madlanga
Justice of the Constitutional Court
My dream is to see a stage at which black men and women legal practitioners – in particular black women practitioners – will no longer be seen as inferior to their white counterparts; a stage at which they will only be judged by competence, excellence and dedication. And, of course, a stage at which they will be afforded opportunities for competence and excellence to manifest and blossom. Placing emphasis on black women is deliberate because patriarchy and misogyny have had a singularly repressive impact on them.
Mbuyiseli Madlanga
Justice of the Constitutional Court
Judgments of Interest
Yolanda Daniels v Theo Scribante and Another (2017)
Yolanda Daniels had lived in a dwelling on a farm in Stellenbosch for 16 years working as a domestic worker for Theo Scribante, the manager of the farm. Her dwelling was protected by the Extension of Security of Tenure Act 62 of 1997 (ESTA) which protects historically marginalised farm dwellers from unlawful evictions and secures their land tenure. Daniels wished to make basic improvements on her home that would allow her to live with dignity. Daniels sent Scribante notification of her intention to make the improvements, which Scribante refused. Daniels approached the courts to seek an order that would entitle her to make the improvements.
In a judgment written by Justice Madlanga, the Constitutional Court found in favour of Daniels and that Scribante had an obligation to allow for the improvements of Daniels’ home, given the undignified conditions. The Court held that at the heart of the matter was the right to security of tenure: “There can be no true security of tenure under conditions devoid of human dignity.”
Dispossession of land was central to colonialism and apartheid. It first took place through the barrel of the gun and ‘trickery’. This commenced as soon as white settlement began, with the Khoi and San people being the first victims. This was followed by ‘an array of laws’ dating from the early days of colonisation. The most infamous is the Native Land Act (subsequently renamed the Black Land Act).
Justice Mbuyiseli Madlanga
the Scribante judgment, 11 May 2017
New Nation Movement NPC and Others v President of the Republic of South Africa and Others (2020)
The applicants – New Nation Movement NPC, Ms. Chantal Dawn Revell, GRO, and Indigenous First Nation Advocacy SA – argued that the Electoral Act is unconstitutional for unjustifiably limiting the right to stand for public office as entrenched in section 19(3)(b) of the Constitution. They argued that the Electoral Act infringes on their right to freedom of association protected by section 18 of the Constitution.
In a judgment penned by Justice Madlanga, the Constitutional Court held that the Electoral Act is unconstitutional to the extent that it requires adult citizens be elected to the National Assembly and Provincial Legislatures only through their membership of political parties, thus, unjustifiably limiting the section 19(3)(b) right. The Court declared that, insofar as it makes it impossible for candidates to stand for political office without being members of political parties, the Electoral Act is unconstitutional.
What commends the applicants’ interpretation is the fact that compulsion to form or join political parties has an impact on the exercise of these important political rights. The importance of these rights cannot be overstated in the South African context where – for centuries – those rights were enjoyed only by the white minority. Accordingly, the rights at stake here fall to be interpreted generously, rather than restrictively.
Justice Mbuyiseli Madlanga
the New Nation Movement judgment, 11 June 2020
Family and Personal Life
Madlanga is married to Nkosisi Monica Madlanga and they have six children. Madlanga held a leadership position in the Methodist Church of Southern Africa as a member of the Arbitration Panel.
In the Words of Others
Working for Justice Madlanga changed my life. He allowed me the space to be all that I am and I am grateful for his tutelage.
Letlhogonolo Mokgoroane
former law clerk to Justice Madlanga
