Kubomvu Bhungane!

Ulufezile ugqatso lwakho. Kodwa ke akhukho nkanga idubula ingethi.

As the legal fraternity celebrates and reflects on Justice Madlanga’s many contributions to the South African constitutional jurisprudence, I want to address two aspects about Justice Madlanga that I think (and hope) I know. The first is my acquaintance with Justice Madlanga as Counsel. The second is my understanding of what I think is a glimpse into his judicial philosophy as a Judge.

From both, I believe that both Counsel and Judges in active service can learn how to be better at their craft.

My Acquaintance with Justice Madlanga as Counsel

I had only two encounters with Justice Madlanga while he was Counsel. The first, in 2011 and 2012, was when he invited me to assist as his junior in an appeal to the SCA. The question on appeal was whether a criminal charge for sexual assault for which the statute [the 2007 Criminal Law (Sexual Offences and Related Matters) Act] provides no specific criminal sanction or penalty is good in law. The Full Court in the Western Cape had ruled that absent a specific criminal penalty prescribed for a criminal offence, the charge (and therefore the statute) is “fatally flawed”. The SCA set aside the High Court decision. We acted for the Justice Minister.

But my take-away from that encounter with Justice Madlanga as Counsel was not so much the outcome of the appeal, or even the craftsmanship of his delivery of argument. Rather it was his leadership style as we were preparing written argument and preparing for oral argument.

Until then, my experience in working with Senior Counsel had been one of constant anxiety, sometimes consternation, brought about by the indecipherable feedback of my leader to my admittedly less than poignant contribution to the brief. And I used to experience this not only in print but also in spoken word and in physical expression.

Not so with Madlanga SC. For the first time, I encountered a leader who – although obviously exceedingly more learned and experienced than I in the advocacy craft – never took for granted that his approach was the only approach. My written scripts came back from him not marked in red or purple ink passing judgment on my less than elegant prose and reasoning. Rather, they came back with questions: (1) “Vido, in making this submission, have you perhaps considered the judgment in ABC case? If so, how do you think it impacts on this line of argument, if at all?” (2) “Vido, suppose you are right on this point, in what way do you think it advances our case? I may be missing something.” (3) “Vido, should we not rather start with point 4, then 2, then 3 and conclude with 1? Don’t you think it flows better that way? I’d appreciate your thoughts.”

That kind of humility in engagement with a junior helped quell my consternation. It facilitated better thinking and reasoning.

The second encounter I had with Madlanga SC was at the Marikana Commission in 2012/2013 where he was lead Counsel for the evidence leaders comprising, among others, Geoff Budlender and Matthew Chaskalson, I think. Led by Semenya SC and Mathibedi SC, we represented the South African Police Service. From my perspective, you could cut the general animosity towards our team with a blunt knife – from some media coverage to some colleagues representing some of the affected families of those mowed down by the police on that fateful day in August 2012. It was as if society was offended by the fact that the police should even have legal representation.

Not so Madlanga SC who, for the most part, elected to direct matters for Evidence Leaders from the rear and not hog the limelight of proceedings that were constantly in the media spotlight. He treated the police legal team with the utmost respect and courtesy even when, sometimes, we advanced – on firm instruction from our clients – what some may regard as less than plausible explanation for some encounters (disclaimer: this is not a concession of any kind). Such is the humility and professionalism of the man I shall forever remember as Madlanga SC.

 My Acquaintance with Justice Madlanga as a Judge

The second aspect on which I would like to say a word about Justice Madlanga is my understanding of what I think is his judicial philosophy as a Judge. I put it no higher than that this is what I think is his judicial philosophy. I have not yet studied a sufficient number of his judgments to reach a definitive conclusion that this is indeed his judicial philosophy. I hope to do that soon and hope he will agree to write his judicial memoir so that generations of young lawyers and aspirant judges can learn from his experiences. I have burnt my fingers believing I know a person and what drives him or her, only to discover that I have been deluding myself – seeing what I wanted to see. So, until I have studied a selection of Justice Madlanga’s judgments, mine will remain what I think is his judicial philosophy rather than what I know definitively to be his judicial philosophy.

There is one aspect of what appears to be Justice Madlanga’s judicial philosophy that has resonated with me and which I want to highlight. That is his recognition of the role played by a Judge’s inarticulate premise in the exercise of the adjudicative function.

In a piece titled “Judging According to Personal Attributes …” which was published in the very first edition of the SA Judicial Education Journal in 2018, Justice Madlanga advances the thesis that “there is no conflict between the oath that each judge takes on assuming office [on the one hand] and drawing on her or his life experience and personal attributes in the adjudicative process [on the other].” It is a thought-piece that I would encourage every practising lawyer and every judicial officer to read, study and reflect upon.

Why? Well, because in that thought piece, Justice Madlanga doesn’t do what most of us tend to do – that is, pretend that our assessment or judgment on a given set of facts and application of law to those facts is not anchored in our deep psyche of how we see the world – having nothing whatever to do with the law. In many instances we do so very conscious of the fact that we are doing so, which is a breach of the oath that each Judge or acting judge takes on assuming office.

But Justice Madlanga is talking about the unconscious influence of a judge’s experience and personal attributes in the adjudicative process. He says: “Judges cannot be expected to entirely jettison all of their [subconscious] biases and perspectives about the world upon stepping into their judicial roles because meeting such a standard would be a superhuman feat”.

But I think there is a perspective that Justice Madlanga’s thesis does not quite consider and which I would urge us to factor into our thinking as we reflect on the role of the inarticulate premise in our adjudicative process. In a country characterised by endemic inequality (and I’m talking about South Africa), and professionals from the “lower classes” (a euphemism for black classes) seeking to mimic or gain the approval of the higher classes (a euphemism for the white class), it is not beyond the realm of possibility that a black judge may indeed jettison her or his biases as informed by the world of poverty and economic deprivation from whence he comes, and embrace a perspective that he believes would elevate his status among his white peers. I have seen this happen at the Bar. It is not impossible that it may be happening on the Bench.

For me, the question is whether the Judicial Service Commission can accurately identify instances where a Judge adjudicates according to her or his view of the world in a way that detracts from the oath of office. Until we can get that right, the idea of what justice and the rule of law demands in South Africa in a given set of circumstances will forever depend on WHO is sitting on the Bench in each case. And that is a tragedy. A Blind Lady Justice will forever remain a mirage in South Africa until we can root out from the adjudicative function political considerations masquerading as fidelity to the very Constitution that is being subverted.

I am eternally grateful to Justice Madlanga for this thought piece. It certainly made me reflect on what exactly the diversity in the composition of our courts means for our democracy. Diversity is not about racial or gender composition. It is about a diversity of views some of which may be regarded as repugnant (even constitutionally repugnant) by some. As we know from History, any view whose time has not yet come can be repugnant until its time comes. This, and other related topics, is a conversation I hope to have with Justice Madlanga unshackled by the chains of judicial incumbency.

The End

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