Capacity: Justice of Constitutional Court
First appointed as judge: 1996, Eastern Cape High Court (resigned 2001)
Further appointments: 2013 – Constitutional Court
Date of Birth: March 1962
Qualifications: B.Iuris (WSU) LLB (Rhodes) LLM (Notre Dame, USA)
- Bwanya v Master of the High Court, Cape Town (CCT 241/20)  ZACC 51 (31 December 2021)
- New Nation Movement NPC and Others v President of the Republic of South Africa and Others 2019 (9) BCLR 1104 (CC) (3 July 2019)
- Daniels v Scribante and Another 2017 (4) SA 341 (CC) (11 May 2017)
- Corruption Watch NPC v President of the Republic of South Africa; Nxasana v Corruption Watch NPC 2018 (2) SACR 442 (CC) (13 August 2018)
- Paulsen v Slip Knot Investments 777 (Pty) Limited 2015 (5) BCLR 509 (CC) (24 March 2015)
- DE v RH 2015 (5) SA 83 (CC); 2015 (9) BCLR 1003 (CC) (19 June 2015)
Justice Mbuyiseli Madlanga is currently the most senior judge on the Constitutional Court, after DCJ Zondo. A highly regarded jurist, Madlanga is often seen as the intellectual leader of the apex court.
His judicial career spans two parts. The first was when he was appointed as a judge of the High Court in Mthatha in 1996. He was at the time the youngest judge to be appointed to the South African judiciary, at only 34 years of age. He was clearly marked for greater things even at the early stage of his judicial career, as he served as an acting justice of the Supreme Court of Appeal between 1998 and 1999, and as an acting justice of the Constitutional Court between 2000 and 2001. However, due to what he describes as the financial pressures of raising a large family with young children, he resigned from the judiciary in 2001 to go back to private practice as an advocate.
In his time in practice, Madlanga appeared in many of the major cases that have come before the courts, including where he represented the Government of South Africa in a 2004 International Court of Justice case that concerned the apartheid-style separation wall constructed by the State of Israel on occupied Palestinian territory.
Also, in 2004 he was appointed as a member of the Competition Tribunal for five years, which was renewed for another five but this time as Deputy Chairperson of the Tribunal.
Of all four candidates running for chief justice, Madlanga is the only one that has served on the JSC not as a judge but as a practicing advocate, a sign that he commanded the respect of his peers.
In 2012 Madlanga was appointed as the Chief Evidence Leader at the Marikana Commission of Inquiry, a position he resigned early in 2013 in preparation for judicial office.
After a successful career practicing as a senior advocate, Madlanga started the second part of his judicial career as a justice of the Constitutional Court in 2013. He has written judgments on many important social issues including land, corruption, women’s rights, electoral law, and, more peculiar, the 2015 judgment in DE v RH, which abolished married spouse’s claims for damages for adultery in South African law.
In the New Nation Movement case, Madlanga found that it was unconstitutional not to allow independent candidates to stand for national elections and set a deadline for parliament to amend the law before the 2024 elections.
Madlanga wrote the seminal judgment in Daniels v Scribante, a case dealing with a Stellenbosch woman who wanted to make modest upgrades to a house she was occupying as a labor tenant, to make it more habitable. The farm owner believed that these upgrades were objectionable and did everything in his power to remove Ms Daniels, including cutting off her electricity supply and refusing to maintain the house. Madlanga analysed the historical relationship between farmworkers and the land that they occupy and found that redress legislation like the Extension of Security of Tenure Act of 1998 was meant to give farmworkers more secure tenure. Madlanga’s judgment placed human dignity at the centre of property relations in SA and emphasised that labour tenants have a right to secure tenure even in the face of stronger claims by landowners. He found the farmers conduct unacceptable and ruled in Ms Daniels’ favour.
South African Research Chair in Property Law Professor Zsa-Zsa Boggenpoel describes Mandlanga’s Daniels judgment as having “placed [the concept of] property at the fringes” as “placing property at the centre, or at the heart of any dispute that may involve property, can in certain circumstances go against the constitutional aspirations of healing the divisions of the past and building a society based on fundamental values such as dignity.”
In another judgment affirming women’s rights, Bwanya v Master of the High Court Madlanga found that women in opposite-sex life partnerships had a right to claim maintenance and inherit from their deceased partners. The case concerned Ms Jane Bwanya, a former domestic worker who was in a long-term romantic relationship with Mr Anthony Ruch. When Mr Ruch died, Ms Bwanya was told that she could not claim any of the assets owned by the deceased – including their Sea Point home – even though they had lived together and had intended to marry. Madlanga found that the definition of “surviving spouse” in the Maintenance of Surviving Spouses Act was unconstitutional as it infringed on the rights to dignity and equality of women in same-sex life partnerships.
Madlanga also has an academic interest and has published in some of the leading academic journals. In 2018 he gave Stellenbosch University’s annual Human Rights Lecture with the title ‘The Human Rights Duties of Companies and Other Private Actors in South Africa’, which was later published in the Stellenbosch Law Review. In 2020, he published in the Public Contract Law Journal an article titled ‘Procurement, Corruption and their Relevance to, an impact on, Human Rights’ which discusses the human rights implications of SA’s public procurement system, including the rampant corruption that bedevils it. In 2020, Madlanga wrote “A Feminist Perspective to Judgment Writing” in the SA Judicial Education Journal – where he reflected on the intersectionality of sexism, misogyny, and patriarchy on women, and what approach judges (especially men judges) should have in confronting these social ills.
Chief Justice Mogoeng invited Madlanga to be the founding editor of the SA Judicial Education Journal in 2017, which he continues to be, including sitting on the advisory boards of other academic journals such as the SA Law Journal, Yearbook of SA Law, and De Jure.
Mandlanga held numerous visiting professorships at local universities and abroad. He was visiting professor at three of his alma mater universities: Notre Dame University in the United States in 2013, Rhodes University in 2018, and Walter Sisulu University in 2021.
Madlanga is seen as the intellectual leader of the Constitutional Court, and many believe he would bring intellectual gravitas and prestige back into the work of the apex court.
Having spent an unbroken 8 years at the Constitutional Court, should he be appointed as chief justice, Madlanga would bring institutional knowledge, a sense of collegiality and consensus building. All of these are important qualities in a court that has shed over half of its membership in a space of less than five years.
The General Council of the Bar notes that, of the 46 judgments Madlanga has written in his time on the Constitutional Court, 21 have been unanimously concurred in, 17 others have commanded significant majority concurrences, and 4 others have had a dissenting judgment from only one judge. The GCB concludes that Madlanga “is a jurist with a reputation for excellence and a leader who commands respect, and that he seeks (and is able to achieve) consensus.”
However, Madlanga is the only one of the four candidates who have never held a formal leadership position in the judiciary. This might put him at a disadvantage considering how vast and complex the role of chief justice has grown to become in modern times.
Madlanga, like DCJ Zondo, is at the tail-end of his 12-year term on the Constitutional Court and must retire by 2025. If appointed, he would serve than 3 years as chief justice. Some see this as a positive, as it would be in keeping with the practice of the past chief justices (pre-2011) while others note that a high turnover in that office is healthy for institutional independence. This latter sentiment might possibly be a reaction to Chief Justice Mogoeng’s tenure, which lasted a record 10 years, in which some commentators feel he lost his vision along the way.
Madlanga was born in 1962 in KwaBhaca (formerly Mount Frere) in the Eastern Cape. He holds the BIuris law degree from the University of Transkei (now Walter Sisulu University), an LLB from Rhodes University, and an LLM from Notre Dame University in the United States. He is married with seven children.
Asked what he regards as his most significant contribution to the law and the law pursuit of justice, Madlanga, in his nomination form submitted to the JSC says that:
“I truly content when, at the conclusion of a matter, I feel that justice has been done. I say this not as a cliché because, even if our approach to the law cannot be faulted, not everything we do has just outcomes… [as] law does not always coincide with justice. I believe that I have an instinct for what is justice and that is what motivates me in my exercise of the judicial function. Many times, that instinctive reaction has helped make a difference and bring about just outcomes where it matters the most; that is in the lives of the vulnerable and marginalised.”
Considering the high public profile his competitors enjoy, Madlanga can easily be seen as a dark horse in this race. It would be interesting to see how this will play out in the interview before the Judicial Service Commission.
February 2022 Chief Justice Interview
Watch an interview with Justice Mbuyiseli Madlanga: