PROFILE: Constitutional Court Chief Justice candidate Mbuyiseli Madlanga

Mbuyiseli Madlanga
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Constitutional Court Justice, Mbuyiseli Madlanga, is one of four candidates to be interviewed for the position of Chief Justice by the Judicial Service Commission starting on Tuesday, February 1, 2022.

He was born in the village of Njijini, outside Mount Frere, in the Eastern Cape.

At the age of 34, Madlanga was appointed to the Mthatha High Court, making him the youngest judge in SA at the time. He’s held acting positions in various lower courts.

Justice Madlanga was a practicing advocate and a JSC Commissioner before he was appointed to the Constitutional Court more than eight years ago.

In 2011, Adv Madlanga was one of the JSC Commissioners, who interviewed former Chief Justice nominee, Mogoeng Mogoeng in Cape Town.

When he questioned Mogoeng, he shared some of his experiences about different judges, when he appeared as counsel before them: “I have been in the fortunate of being in the position of having appeared before former Chief Justices Ngcobo, Langa and Chaskalson. And when counsel would be presenting arguments before them they would be quite engaging. I could give examples of the Supreme Court of Appeal as well, President Mpati when he presides he too, he is quite engaging and that is true as well of even judges who are only ordinary judges of the Supreme Court of Appeal, but who wouldn’t be a senior judge in a panel and there the presiding judge. And my experience is that they are quite engaging. I have appeared I think two or so times in the Constitutional Court after your appointment to that court. And on those few occasions, I don’t remember you saying anything at all during argument.”

And now Madlanga will be under scrutiny for the same top position in the judiciary. He will be the first candidate to be interviewed by the JSC on Tuesday. Since his appointment as a justice to the Constitutional Court in 2013, Madlanga delivered various landmark judgments which required Parliament to amend the legislation.

In 2016, Justice Madlanga delivered a judgment in which he declared Section 11 of the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act to be inconsistent with the Constitution.

This, after the DA successfully challenged the constitutionality of Section 11 of the Act. The court bid was prompted by the removal of Economic Freedom Fighters (EFF) MPs by security forces from the National Assembly chamber during former President Jacob Zuma’s State of the Nation Address on February 12, 2015.

Section 11 of the Act made provision for the arrest or removal of a person, who causes disturbance. But, this provision in the Act was not clear whether the removal of a person included MPs.

The court declared that MPs cannot be removed or arrested by police for causing disturbance in the chambers due to exercising freedom of speech.

These were Madlanga’s parting shots in his judgment: “In terms of the ACT causing or participating in disturbance is a criminal offence for which members are liable to be arrested in terms of section 11. Surely the threat of arrest for a criminal offence with all that may ensue has the potential of inhibiting free speech in parliament. Based on this, the majority concludes that if the person in section 11 includes members it does limit the privilege of parliamentary free speech. This limitation is at odds with the constitutional stipulation that free speech may only be subject to rules and orders.  The question is does the person in section 11 include members? The majority of judgment observes that throughout the act persons preponderantly includes members. When interpreted both contextually and purposively, the person in the section includes Members of Parliament. The majority judgment holds that the omission of the words other than a member  after the word person in section 11 is inconsistent with the Constitution.”

Following the outcome of the court judgment on Section 11 of the Act, the Act and all the rules of Parliament for both Houses had to be amended.  Another landmark judgment also delivered by Madlanga, related to the Electoral Act. which failed to pass constitutional muster.

The Act was declared unconstitutional for not making provision for independent candidates to contest national and provincial elections. Madlanga made the ruling in June 2020 and ordered that the legislation be rectified by June this year.

“It is declared that the Electoral Act 73 of 1998 is unconstitutional to the extent that it requires that adult citizens may be elected to the National Assembly and provincial legislatures only through their membership of political parties. 5. The declaration of unconstitutionality is prospective with effect from the date of this order, but its operation is suspended for 24 months to afford Parliament to remedy the defect giving rise to the unconstitutionality.”

The 59-year old Constitutional Court Justice who turns 60 in March this year will be up against three other candidates to compete for the highest position in the Constitutional Court. Madlanga’s 12-year non-renewable term of serving in the apex court ends in 2025.