Thapelo Lekabe

By Thapelo Lekabe

Senior Digital Journalist


JSC interviews: Madlanga in favour of changing quorum of ConCourt judges

Justice Mbuyiseli Madlanga says the current quorum of eight justices is an injustice to litigants.


Constitutional Court (ConCourt) Justice Mbuyiseli Madlanga says if he were to be appointed South Africa’s next Chief Justice, he would push for a constitutional amendment to change the minimum number of justices required to decide a case.

JSC interviews

Appearing before the Judicial Service Commission’s (JSC) public interviews for the top judicial post, Justice Madlanga said he would approach Justice Minister Ronald Lamola to request the current 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,” Justice Madlanga said.

The 59-year-old is the first candidate to be interviewed by the JSC for the position of Chief Justice. The public interviews are scheduled to take place from Tuesday until Friday in Sandton, Johannesburg.

The other candidates who have been shortlisted by President Cyril Ramaphosa for the top post include:

  • Acting Chief Justice Raymond Zondo,
  • Supreme Court of Appeal (SCA) Judge President Mandisa Maya
  • Gauteng Judge President Dunstan Mlambo

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The four nominees are vying to replace former chief justice Mogoeng Mogoeng, who retired in October 2021 after his non-renewable term of 12 years at the apex court ended.

Injustice

Madlanga said the current quorum of eight justices at the ConCourt had a negative impact on the interests of justice as the court had to grapple with having split decisions in recent times.

He said this was an injustice to litigants and it needed to be changed.

“That is a very unfortunate outcome for litigants because when you appeal, it is not just appealing for the sake of appealing. You are actually exercising a constitutional right under the rubric of a fair hearing, a fair trial and you’re also entitled to the right of appeal.

“Now here’s the injustice: once we are evenly tied, the effect is that the judgment appealed against stands. So, it’s as good as if you never appealed. It must be clear to everybody listening here that that is an injustice,” Madlanga said.

He said a constitutional amendment on the quorum of judges could also be dealt with through an act of Parliament.

Delays in ConCourt rulings

Earlier, Madlanga was asked about delays in the ConCourt delivering judgments on time following criticism from some politicians and the public over cases taking too long to be adjudicated.

He spoke about the “deluge of applications” that the apex court had to deal with after a constitutional amendment in August 2013.

He said the amendment widened the purview of the ConCourt to not only adjudicate constitutional matters, saying this had led to justices being “bogged down” by the volume of applications before them.

“It was to be expected that there would be a sudden deluge of applications. In 2014, the figure shot up well over 200 [from 100 in 2013]. From 2015 to today, new applications have been averaging well over 300.

“Last year there were 394 applications. So in no time, we may get more than 400 new applications,” Madlanga said, adding that these were very large figures because all 11 justices of the ConCourt have to decide on cases before them.

Madlanga said they had identified some of the matters that led to the excessive delays, and they were in the process of implementing measures to change this.

“With the delays – which I think we now have a solution – perhaps there could quite easily have been an impression […] that maybe we do not work hard enough. I had intended to dispel any such possible perception.

“I just wanted at a factual level to make the point that we actually do work hard, in fact, very hard,” he said.

The JSC interviews continue.

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