Capacity: Deputy Judge President
First appointed as judge: 30 July 2007
Gender: Male
Ethnicity: Black
Date of Birth: November 1953
Qualifications: B.Iuris (UniZulu) LLB (UKZN), LLM (Unisa) PGDip (Drafting of Contracts) (Cert: Legislative Drafting) (UJ)
Key judgments:
- CASAC v The Ingonyama Trust 2022 (1) SA 251 (KZP) (11 June 2021)
- NEHAWU v Minister of Public Service and Administration (2022) 43 ILJ 1032 (CC)(28 February 2022)
- Queen Sibongile Zulu v Queen Buhle Mathe (2751/2021P 2752/2021P) [2022] ZAKZPHC 6 (2 February 2022)
- Shembe v Shembe (AR250/2017) [2018] ZAKZPHC 45 (12 April 2018)
- Savoi v National Director of Public Prosecutions [2013] 3 All SA 548 (KZP) (17 May 2013)
Candidate Bio:
Judge Mjabuliseni Isaac Madondo is the current Deputy Judge President of the KwaZulu-Natal High Court.
Born in the rural KZN midlands town of Msinga, Madondo enjoyed an illustrious career as an advocate at the Pietermaritzburg Bar, including several years as senior counsel (or ‘silk’), before becoming a judge of the KwaZulu-Natal High Court in 2007.
Not long after his appointment, Madondo had an eye for greater ambitions, and he soon applied for a leadership position in the KZN Division of the High Court.
Madondo stirred controversy when he went up against former KZN Judge President Chiman Patel for thar position in 2011. Prior to that round of interviews, an unsigned letter from the Pietermaritzburg branch of the Black Lawyers Association accusing Patel of being an “anti-Black African” racist was sent to the Judicial Service Commission. The commission ignored the letter, and its spokesperson, Advocate Dumisa Ntsebeza SC described it as an “aberration”.
But the tone had been set, when asked by then-commissioner Koos van der Merwe whether the time was not ripe to appoint an “Indian” as judge president, Madondo responded: “I don’t think so. We still have things to address – imbalances, all kinds of things, which need more insight, which a person who is not [a black] African cannot be privy to.”
Naturally, race again dominated Madondo’s unsuccessful October 2015 interview for the position of Deputy Judge President – as did questions about whether the commission should consider appointing a much younger person to a leadership position on the Bench.
Madondo would interview four more times until he successful became DJP of KZN in 2016.
After the retirement of respected Judge President Achmat Jappie in 2021, Madondo is back again to claim the top job.
Madondo’s has written important, high-profile judgments that involve constitutional issues and have shaped the law.
In 2021, Madondo gave the landmark judgment in CASAC v Ingonyama Trust where the Zulu King’s Ingonyama Trust was declared to have acted unlawfully and unconstitutionally by giving the king’s subjects residential leases over land the king was holding in trust on their behalf, forcing people to be perpetual tenants over their own ancestral land. Madondo ordered that these leases be cancelled, the rentals be paid back, and the land reform minister put measures in place to regularize people’s occupation of the land.
In a dispute reminiscent of the popular TV series ‘Game of Thrones’ involving the fate of the throne of the Zulu Kingdom, Madondo presided over the challenge to the validity of the will of the late King Goodwill Zwelithini kaBhekuzulu, and the nomination of his successor. In Queen Sibongile Zulu v Queen Buhle Mathe, one queen sued the other queens to claim ownership of the late king’s estate, and the authority to choose the future king of AmaZulu. Madondo dismissed the succession challenge – holding that the determination of the successor is unrelated to the will and must be done according to Zulu law – and ordered that the validity of the will go to trial where expert evidence will be led.
In 2013 Uruguayan business Gaston Savoi – who is facing corruption, racketeering and fraud charges related to alleged dodgy procurement deals with the KwaZulu-Natal Health Department — asked the high court to declare the definitions of “pattern of racketeering activity” and “enterprise” in the Prevention of Organised Crime Act (POCA) unconstitutional and invalid, on the grounds of vagueness and over-breadth.
Madondo rejected the constitutional challenge, save for findings of unconstitutionality in respect of certain provisions to the extent of the inclusion of the words: “ought reasonably to have known”, which were declared unconstitutional and invalid to that extent. The Constitutional Court rejected Savoi’s appeal and declined to uphold the High Court’s findings of invalidity.
Madondo has acted as a justice of the Constitutional Court and, while there, wrote the judgment in NEHAWU v Minister of Public Service, one of the biggest, most consequential cases in recent times. The case dealt with the validity of a bargaining agreement over public servant salaries. The Labour Appeal Court had found that, due to a declining fiscus and a weak economy battered by the Covid-19 pandemic, the Government was not bound to increasing salaries in the last year of a multi-billion rand 3-year wage agreement. This naturally upset public sector trade unions representing millions of teachers, nurses, policemen and government clerks, and they wanted it reversed on appeal.
After carefully analysing the law and facts, Madondo gave the unions the biggest upset when he dismissed the appeal on the basis that the wage agreement did not substantial comply with legal prescripts but, perhaps more importantly, enforcing the wage agreement would not be just and equitable in light of the difficult health economic circumstances facing the country.
Although Madondo has been acting as KZN Judge President, and comes with years of experience, deep connections to the legal profession, the magistracy, and ordinary KZN communities, he faces some obstacles to clinching the top job.
At the relatively mature age of 69, and with his mandatory retirement date set for 26 November 2023, Madondo will face tough questions from the JSC on whether it is worthwhile appointing someone with only a few months shy of leaving the job.
Worse still for his prospects, Madondo faces still competition from two women judges, Judge Esther Steyn and the youthful Judge Thoba Poyo-Dlwati. Might this be history repeating itself?
October 2022 Interview
October 2022 JSC interview of Judge Mjabuliseni Isaac Madondo for the position of Judge President on the KwaZulu-Natal Division of the High Court. Mr Madondo’s application was unsuccessful.
April 2022 Interview
April 2022 Synopsis
As the only candidate shortlisted for the vacant post of KZN judge president, Judge Mjabuliseni Madondo was a shoo-in and the job was his for the losing.
His nearly 3-hour interview started with the usual pleasantries of Chief Justice Zondo going through Madondo’s CV and later invited him to give his vision for the KZN High Court Division. This set off a rather long (somewhat torturously slow) speech about the problems facing the Division including the low number of judges to population ratio, inadequate interpretation, costs of litigation, insufficient courtrooms, competency of judges, and efficiency of the courts generally.
What was clear was that Madondo is aware of the problems, has taken some initiatives to fix them, and now seeks elevation to the top jobs to deal with these problems.
However, one was left with the question of why, as one of the most senior judges, and the second-in-command, who effectively runs the Pietermaritzburg High Court, why has he not led on most of the problems he identifies? He retires in November 2023 and we are doubtful that he would be able to solve most problems if he only starts once appointed as JP.
Judging from his track record, Madondo is an intelligent, experienced judge who is competent at judging. He also seems to have strong relationships with judges in the division, and deep connections to the local legal profession, and the magistracy, but is also in touch with the aspirations of ordinary people. He has worked tirelessly to bring access to justice to the largely rural, poor population of the province. It’s not entirely clear why he left many of his grand ambitions to the twilight of his career, shortly before his mandatory retirement.
Ironically, the retirement question did not arise during the interview. What dominated the interview was his extra-judicial writing, including a book titled Revelation of God’s Plan, which he calls an interpretation of the Bible.
Prompted by a concern raised by Commissioner Narend Singh, Madondo explained that he decided to write the book to provide guidance to Christians, including a chapter where he says homosexuals are ‘unlikely to repent’ despite the teachings of the bible.
The interview went downhill from there, with several commissioners taking umbrage with Madondo’s responses which showed an unflinching refusal to acknowledge the problematic statements in the chapter, with National Assembly Speaker Nosiviwe Mapisa-Nqakula shouting “judge, you are homophobic!” after relentless questioning.
Madondo was not recommended for appointment and the JSC decided to leave the KZN Judge President position vacant.
April 2016 Interview
April 2016 Interview Synopsis
Madondo was another candidate returning from a bruising encounter with Economic Freedom Fighters leader Julius Malema during last year’s October interviews for the same position. While his colleague was quizzed on the “Indian Question” in KwaZulu-Natal and the perception that people of Indian descent dominated the legal, political, and economic spheres, Madondo was pushed by Malema about his age – and whether the division’s leadership required an infusion of young blood.
An argument that — to cynics — began to make sense as Madondo answered questions in the sort of plodding, stilted manner that had those still awake glancing at their watches.
Madondo conceded that he had not acted in an administrative role as a judge. He singled out limited access to justice “due to poverty and a lack of education which meant people were not aware of their rights and remedies” as issues that required immediate attention. Suggestions he made to remedy this, included outreach education programmes for citizens, improved legal services for “people without legal knowledge coming to court” and ensuring that courts were more “user-friendly” for abused women and children and elderly people.
A common thread in all the interviews for the deputy judge president position was the matter of judges not subscribing to minimum norms and standards regarding delivering judgments promptly. In many instances, it would appear slack or spiky judges have argued that the requirements infringe on their “judicial independence”.
Asked by Judge President Achmat Jappie how he would deal with this, if appointed, Madondo said he would sit down with the judges and explain the benefit and context of dealing expeditiously with judgments: “The mere fact that they are independent doesn’t mean they have to be indolent… creating a problem and defeating the system.”
Madondo has been involved in race issues before the Judicial Service Commission before (see profile below) – expressing string views that Black Africans were required to be included in the leadership of the KZN Division.
Citing the KZN Advocates for Transformation (AFT) submission to the JSC that, with Jappie defined as “coloured” and fellow contender Shyam Gyanda of Indian descent, it was imperative that the commission consider appointing a Black African, Commissioner Dumisa Ntsebeza SC asked Madondo to comment.
“If you want to achieve equal and equitable representation of all sections often population, [the AFT submissions] must be taken into account,” said Madondo.
