In September 1985 apartheid police shot dead liberation activist Bathandwa Ndondo in Cala, Eastern Cape. In the year before he was killed, Mbuyiseli Madlanga, who retired from the judiciary this week as acting deputy chief justice, kept Ndondo in hiding when he was on the run from the security police.
At the time, Madlanga was an additional magistrate at the Mthatha magistrate’s court — where the Transkei security police “would go all the time”, he said. “Two of the main security police officers, Booi and Dengana, would say: ‘Molo, molo mhlekazi’, which is ‘good morning, sir’, and greet me with respect.” Madlanga laughs as he tells this story.
“I remember saying to bhut’ Dumisa Ntsebeza, if Booi and Dengana knew I was keeping people like this, bangandithena, which means they would castrate me.”
As Madlanga retired this week, his name was top of the news agenda, but for different reasons. He has been appointed to head a commission of inquiry to investigate the bombshell allegations by KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi that police minister Senzo Mchunu, sections of several law enforcement bodies and even the judiciary colluded with criminal syndicates.
An urgent application to the Constitutional Court by the MK Party to declare the commission invalid was heard on Wednesday. On Thursday afternoon, the same day the court held a special ceremonial sitting to mark Madlanga’s departure, it rejected the application.
That same morning, Madlanga handed down judgment — his last — in the marathon legal battle between Nkosana Makate and Vodacom over compensation for Makate’s “please call me” innovation. In a judgment likely to be debated by legal scholars for years to come, Madlanga sent the case back to the Supreme Court of Appeal, with a scathing rebuke of the SCA’s “fatal shortcomings” in its judgment.
For our interview on Wednesday, Madlanga disallowed questions about the commission. Unaware he was the scribe of the Makate judgment, coming the following day, I wanted to discuss the Constitutional Court’s earlier Makate judgment of 2016. He smiled mysteriously and said: “I don’t think I should talk about that.”
So instead, I asked about his formative years in the village of Njijini, near Mount Frere. “I’m a rural boy, born and raised,” he said. “I grew up like any other rural boy, herding goats and cattle. We did not have sheep at home.”
It was a “very quiet rural life ... quite ideal for young children”. His father, a school principal, was “quite the disciplinarian”. His mother, a nurse by training, was the “softie”. “But she too instilled in us good values and could also be quite strict and firm. But she was nothing compared with my father.”
It was his father who suggested a career in law. “He said ‘Don’t you want to be a judge one day? If you do, maybe you should study law.’ And that was it.”
His father died in a car accident the day he was travelling back from the US having graduated, cum laude, with a master’s degree in constitutional and human rights law from the University of Notre Dame.
While abroad, his father wrote to him, “real letters”.
“Maybe it was his way of saying goodbye,” he said, voice wobbling. Madlanga was elevated to the bench in 1996. “I am very proud that I became what my late father wished for me. That’s the proudest thing.”
I am very proud that I became what my late father wished for me. That’s the proudest thing.
Talking about Madlanga’s early years at the bar in the Transkei, Ntsebeza, an advocate and former anti-apartheid activist, told the Sunday Times Madlanga was “very bright”. He said he recommended Madlanga to the then justice minister Dullah Omar for permanent appointment to the bench — at just 34 years old and five years after becoming an advocate.
He was, at the time, the youngest judge ever appointed. Being a judge so young was “very isolating” and lonely, Madlanga said. “You just felt you could no longer socialise the way you used to, party the way you used to, you know.”
Ntsebeza chuckled that they were “drinking friends” before Madlanga went to the bench. “But maybe you shouldn’t write that.”
Within two years of his permanent appointment to the high court, Madlanga was invited to act at the SCA by former chief justice Ismail Mahomed. And it was not long afterwards that Arthur Chaskalson, then president of the Constitutional Court, asked him to act at the apex court.
It was during this stint that Madlanga decided to resign from the judiciary and go back to the bar, despite a plea from Chaskalson that he reconsider. He had a young family and other financial commitments and he could not survive on a judge’s salary. When I asked if he has any regrets, Madlanga said one might be “having gone to the judiciary quite young and having to pull out”.
Madlanga was the chief evidence leader at the Marikana commission into the 2012 massacre in which police shot dead 34 striking miners. Another 10 had been killed in previous days.
“All that I would want to comment on is how painful an experience that was,” he said. "
Not just for me personally, but for South Africa as a country. It’s a blot on our nation’s history.
“I remember just watching those videos. These people are alive, singing, marching, speaking. And, as you are watching, you know the hail of bullets, people falling to the ground, some trying to crawl, even after being shot ... You know that’s coming. It’s difficult to explain one’s emotions, very difficult.”
The evidence leaders at the commission went to great lengths to uncover evidence. “We just had to dig. We insisted on being furnished with everything that was available electronically. And that really helped us and fortunately there was co-operation. And to the extent that there was some holding back on what we were given, we would be able to see, from what we had, that there’s more. And then we would insist on being given the [rest].”
Madlanga’s time at the commission was cut short by his appointment to the bench, going straight to the apex court.
He has written some 60 judgments for the Constitutional Court. There is the Scribante judgment, in which Madlanga infused security of tenure laws with the right to human dignity. There is the Mokone judgment, in which he overturned an ancient common-law principle, inherited from English law. The principle was that, where there was a lease agreement and the parties agree to extend the lease, that agreement applies only to the extension of the lease and not any collateral agreement, such as an option to purchase. According to the old principle, the parties must, expressly or tacitly, say the option is also extended.
“Instinctively, I just said: ‘Uh uh, I don’t understand this. I said: take lay people, who have a lease agreement with an option to purchase. And ... they simply write on the piece of paper ‘extended to such and such a date’... If we simply followed what was said in the English case, it would have been that the option was not extended. I said: that cannot be.” He said the answer should be one of interpretation, not a rigid legal rule.
Then there was the sharp disagreement between himself (for the majority) and David Unterhalter, then an acting judge at the Constitutional Court, dissenting, in the case of Eskom Holdings v Vaal River Development Association. Their debate was very judgy — “I am in respectful disagreement” — but it was serious business.
The debate was a complex legal one about the nature of rights and their content. But when Madlanga talks of this case, it is the litigants, and their plight, he talks of.
The case involved Eskom reducing the amount of bulk power to two municipalities. As a result, the municipalities started cutting power for residents. Sewage pumps stopped working and raw sewage flowed into the Vaal River. Hospitals, schools and old-age homes were affected. The residents went to court to review Eskom’s actions. In the meantime, they asked for an interim order, which went all the way to the apex court. “Just imagine being exposed to ... ingesting water contaminated with faecal matter,” he said.
Nominated for chief justice in 2021, Madlanga said in his Judicial Service Commission questionnaire that, while the application of the law did not always lead to just outcomes: “I believe I have an instinct for what is just and that is what motivates me.”
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