Picture File: Justice Mbuyiseli Madlanga. Picture: Gallo Images
Constitutional Court (ConCourt) Justice Mbuyiseli Madlanga, who is one of four candidates vying for the Chief Justice position, has set out his vision for the judiciary should he be appointed to the top post.
Madlanga was grilled by commissioners of the Judicial Service Commission (JSC) on Tuesday – the first day of interviews for the job of Chief Justice.
He was shortlisted by President Cyril Ramaphosa along with three other candidates who will be interviewed in Johannesburg by the commission from Tuesday until Saturday.
The other candidates are acting Chief Justice Raymond Zondo, Supreme Court of Appeal (SCA) President Mandisa Maya and Gauteng Judge President Dunstan Mlambo.
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Madlanga spoke about how he would improve access to justice for ordinary citizens, issues of gender sensitivity in the courts and changing the current quorum for the apex court from eight to nine.
According to Madlanga, the administrative and judicial functions of the Chief Justice need to be separated in the Office of the Chief Justice.
Madlanga told the JSC that he believes the Chief Justice should not be a “super secretary-general” or “a super director-general” due to the administrative functions of the office.
He suggested that some administrative tasks of the office should be outsourced to other officials.
“I believe that a Chief Justice must lead the judiciary from the front in terms of the creation of the country’s worthy and lasting jurisprudence.
“Depending on the nature of administrative functions that the Chief Justice currently performs, one may have to look closely at them, and see which ones, if any, one may have to be relieved of,” he said.
In terms of access to justice by ordinary South Africans and court rules, Madlanga said some court rules needed to be changed.
He said court rules that impede access to justice were at odds with the country’s constitutional principles, especially for South Africans who can’t afford legal representation.
“I think of the example of rules both in the magistrates’ courts and the superior courts that require parties to have an address for service of all process on them within a specified limited radius from the sit of the court.
“Take the example of a poor self-representing person, who lives in Springbok in the Northern Cape, and knows nobody in Kimberley where the sit of the high court is.
“Bear in mind that the distance between Kimberley and Springbok is some 780km. Where and how will that poor person find an address within the stipulated radius?” he asked.
Madlanga said the court online system, introduced by retired chief justice Mogoeng Mogoeng, would be implemented effectively throughout the country’s courts to ensure that citizens who don’t have access to the internet due to the digital divide are also accommodated.
“Court online is a welcomed intervention, but in introducing it, it must be run in tandem with the system that will cater for the interests of those who cannot access it.
“This is something a new chief justice will have to look into quite closely,” Madlanga said.
The judiciary is not only about superior courts, and if appointed, Madlanga said he would engage more on the challenges facing lower courts, even though they fall under the Department of Justice.
He said it made a lot of sense for the lower courts to be under the same umbrella as superior courts.
“I’m aware that there are certain issues that the magistracy wants to be addressed.
“As I understand, at least two issues that the magistracy is concerned about are its transfer from the Department of Justice.
“If appointed, I will engage the magistracy to listen to its concerns and see what needs to be done.”
Madlanga said he believes courts should be sensitive to minority groups such as the LGBTQ+ community and address issues of misogyny and sexism within the justice system.
“These are issues that are quite important to me. These are issues that go to the dignity of people,” he said.
Madlanga said he would call for an amendment of the JSC Act with regards to the roles of the Chief Justice in the various processes of the commission.
He said it was concerning that the Chief Justice was the chair of the JSC interviews, while at the same time being tasked with disciplinary processes involving judges.
“Rather than coming up with a practical solution, I think there needs to be specific provision on how this should be handled at the level of the act itself.”
Madlanga said he would push for a constitutional amendment to change the minimum number of ConCourt justices required to decide a case.
He said he would approach Justice Minister Ronald Lamola to request the current ConCourt quorum of eight justices be changed to avoid split rulings from the apex court’s 11 judges.
“I want to approach the minister of justice, if appointed, to move that there be a constitutional amendment and that we do away with the quorum of eight.
“I’m quite comfortable with nine [justices] but the even number just does not make sense for me.”
WATCH: JSC interviews Justice Madlanga for Chief Justice post
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