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KwaZulu-Natal JSC interviews wind down: Mjabuliseni Mad...

South Africa

THE JUDICIARY

JSC interviews for KZN wind down: Mjabuliseni Madondo left out in the cold due to homophobic writings

Judge Mjabuliseni Madondo handing over a judgement over the nomination of Misuzulu Zulu as the next king of the Zulu nation. Photo: SANDILE NDLOVU/Pool

Friday 8 April marked the last day of Judicial Service Commission interviews for KZN. Acting judge president Mjabuliseni Madondo was not recommended for appointment while advocate Rob Mossop was recommended for one of the vacancies at the Pietermaritzburg high court.

On Friday Mjabuliseni Madondo found out that the judge president vacancy might be vacant for longer because the Judicial Service Commission (JSC) did not recommend his appointment. 

The JSC only recommended Rob Mossop to be appointed to the Pietermaritzburg high court. This means that the two other high court vacancies will remain vacant.

During Madondo’s interviews, a chapter from his book on homosexuality was scrutinised. Commissioner Nosiviwe Mapisa-Nqakula went as far as telling Madondo “judge, you’re homophobic and in 2022, it’s unbelievable”.

Commissioner Narend Singh was the one who brought up Madondo’s book, which he said was brought to his attention. “Your book which was published in 2019, which is titled Revelation of God’s Truth and Plan, argued that homosexuals are ‘clinging to perversion’,” said Singh. 

“Seeing as you’re in a senior position, do you not see these comments as an affront to the Constitution?” asked Singh. 

Madondo’s response was that Singh had quoted a line from the book out of context. 

Commissioner Kameshni Pillay then offered to summarise the points made in the chapter. In it, Madondo writes about the destruction of Sodom and Gomorrah and quotes the Bible’s prohibition against homosexual sex, said Pillay. “You conclude that: ‘in the grace dispensation nobody should be killed for sinful nature,” said Pillay. 

But Madondo also wrote that homosexuality “sears the mind”, leads to venereal diseases and disrupts the nuclear family. As to whether homosexuals can change, Madondo concluded that they cannot. 

“The chapter is littered with your own commentary and there is a clear conclusion where you describe it as a perversion. There is a strong note of homophobia that comes through your chapter. We know courts and judges are final guardians of the constitution. Do you not see a clear breach of the code of conduct?” Pillay asked. 

Madondo defended his work by saying that it wasn’t a book dealing with legal matters, it was a book that dealt with a religious debate. “That is the Bible’s interpretation, not necessarily my views. But as I said in the grace dispensation, nobody is or should be killed which clearly shows you I’m not of the view that homosexuals should be killed,” said Madondo. 

Chief Justice Raymond Zondo, who chairs the commission, asked whether Madondo’s religious view would affect how he adjudicates matters. “No, it doesn’t and it hasn’t been an issue in the many years I’ve been adjudicating matters,” said Madondo. 

Madondo was first appointed as a judge in 2007. 

Mapisa-Nqakula, who was clearly vexed, said that she was also a devout Christian but didn’t agree with Madondo’s argument in the book. “What concerns me, is your entire outlook which you claim is based on your religious beliefs as contained in the Bible. I have a problem with that. There are many Christians who have gone to embrace LGBTQ persons,” said Mapisa-Nqakula. 

Commissioner Ronald Lamola, the Minister of Justice and Correctional Services, said that there was “a wave” of murders in the LBGTQ community and asked whether Madondo thought his views spread the message of tolerance. Commissioner Sesi Baloyi read out the code of conduct judges need to adhere to which prohibits any commentary that is sexist, racist or in any way discriminatory. “How do your comments not fall foul of that?” asked Baloyi. 

In answering numerous questions by commissioners about the chapter, Madondo reiterated that the book specifically dealt with religious matters and was meant for Christian readers. Madondo said that over the years he had never been found to have fallen foul of the code of conduct. 

Madondo also didn’t take too kindly to being accused of being homophobic. “I haven’t done anything to support the statement that I’m homophobic. I regard that as an attack on me without evidence. The Bible operates in a different way from the Constitution. To say something doesn’t mean I believe it,” said Madondo. 

When asked for closing remarks, Madondo told the commission that over the years he has proven to be a competent judge and that his book was distorted to paint him as a homophobe, which he wasn’t.

Madondo has written other books which include The Role of Traditional Courts in the Justice System and Msinga: History and its Political Landscape (1820-2013).

Madondo’s high-profile cases include CASAC v Ingonyama Trust, when he gave the landmark judgment that declared the Zulu King’s Ingonyama Trust had acted unlawfully and in violation of the Constitution by giving resident leases to the king’s subjects for whom he was holding the land in trust, forcing them to be perpetual tenants to their own land. 

Madondo ordered that these leases be cancelled and the land reform minister put measures in place to regularise people’s occupation of the land.

Other interviews

Rob Mossop

Speaking on the importance of diversity on the bench, advocate Rob Mossop said that it was essential to have judges from different backgrounds. 

“Diversity is a constitutional imperative that this commission needs to take into consideration when appointing judges. We’re a multicultural society, why should the bench not reflect that? There is evidence that multicultural groups make better decisions when there’s a diverse experience,” said Mossop.

Mossop has been an advocate for 26 years and said that he has experience in various fields of the law.

Burt Laing

Commissioners were concerned about the legal proceedings against Burt Laing. The legal proceedings are based on what happened around 2014, when a couple said that they had not received a title deed that belonged to them. 

The title deed was delivered to them. They disputed that it was served. I undertook to get another one and have it delivered to him. He needed to sign an affidavit but he refused,” said Laing.

The applicants also claimed that Laing withdrew R10,000 from an investment account without permission. Laing said that the applicant had  given him verbal consent to withdraw the money.

Zondo told Laing that it might be risky to recommend his appointment while he had legal proceedings against him. 

Laing has been an attorney for almost 40 years. 

Mbuzeni Mathenjwa

Mbuzeni Mathenjwa was a professor at Unisa until he retired last year to focus on his work as an advocate. 

Although Mathenjwa has spent most of his time in academia, he assured the commission that he was more than capable. “The new dispensation meant that the pool from which judges are selected became wider, you can pick from academics, attorneys and advocates. However, I think my experience as an academic and advocate should count in my favour,” said Mathenjwa.

Mathenjwa’s legal career began in 1996. 

Linus Phoswa 

Speaking about his experience in the high court, Linus Phoswa described it as an “eye-opener”. 

Before Phoswa started working in Durban, he said that former judge president Herbert Msimang warned him that the workload was heavy. “But you know, we were taught to work hard, that’s our motto,” said Phoswa.

Madondo, who is the current acting judge president in the province, asked Phoswa about comments from practicing attorneys that he had “failed to grasp principles of the civil procedure”. Phoswa said that wasn’t the case.

Writing on Phoswa, Judges Matter wrote: “In 2010, he held a 6-month stint as an acting judge in the KZN High Court in Pietermaritzburg. Curiously, a decade was to pass before he was invited once again to sit on the KZN bench as an acting judge in 2021.”

Narini Hiralall

Madondo said that concerns had been raised about Narini Hiralall’s lack of experience when it comes to civil law. 

Commenting on this, Hiralall said: “I studied law for 10 years and I have experience in civil and criminal litigation. The years that I’ve been away didn’t alienate me from the law. For instance, arbitrations are very much like civil trials, they just have different principles,” said Hiralall. 

Hirallal started her career in criminal law but is now a specialist in labour law. 

Commissioner Sesi Baloyi was concerned about Hirallal’s lack of experience. Baloyi also noted errors in Hiralall’s judgments and was concerned that Hirallal was not willing to admit her errors. 

Hirallal acknowledged that she still had a lot to learn. “Despite my shortcomings, I am willing to research and learn,” Hiralall told the commission.

Elsje-Marié Bezuidenhout 

When asked about her thoughts on the role of traditional courts, Elsje-Marié Bezuidenhout said “to keep the process simple and uncomplicated, they don’t allow legal representation, which is against my feeling of everyone is entitled to legal representation. They deal with simple, straightforward cases. This could relieve some of the burdens on regional and district courts.”

Bezuidenhout was the only white woman to be interviewed for the vacancies at the Pietermaritzburg high court. If she was appointed, she would’ve been the first white female judge at the Pietermaritzburg high court. 

Bezuidenhout started her legal career as an assistant administrative officer in the Department of Trade and Industry. She later became a fraud prosecutor in the Johannesburg Magistrates Court, before eventually relocating with her family to Pietermaritzburg, where she joined the Bar as an advocate in 1999.

Hoosen Gani

Asked what area he thought he needed more experience in, advocate Hoosen Gani said that there were none. “I think I have been exposed to sufficient areas and that I am ready. I haven’t practiced in criminal law for years but I am familiar,” said Gani. 

Gani has been an advocate for 23 years. Since 2020, he has held several acting stints as a judge in the Pietermaritzburg High Court. He has written judgments involving insolvency law, legal professional ethics and criminal law. 

Kwazi Mshengu, MEC for Education in KwaZulu-Natal, asked whether judges are at liberty to speak on different platforms about anything. “If a judge accepts an invitation to speak, they should stick to the code of conduct. If they’re speaking at a university, they should stick to legal principles,” said Gani. DM

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