But I must explain to you how all this mistaken idea of denouncing pleasure and praising pain was born and will give you a complete account of the system and expound the actual teachings of the great explore
“In its language, the Constitution accepts that it cannot solve all of our society’s woes overnight, but must go on trying to resolve these problems.”
Lawyer and passionate proponent for the rights and welfare of political prisoners, Justice Tholakele (Tholie) Hope Madala was one of the first black judges in South Africa. He was appointed to the Constitutional Court in 1994, and his judgments often expressed his strong ethos of ubuntu.
Beyond the courtroom, Justice Madala’s principles were deeply rooted in the philosophy of ubuntu, a guiding ethos reflected profoundly in his judgments. His commitment extended far beyond the confines of law; it resonated with compassion and empathy, embodying the essence of ubuntu in every decision made.
Tholie Madala was born in Kokstad on 13 July 1937. After matriculating at St John’s College in Umtata in 1956, Madala went on to Fort Hare University where he obtained a BA (Rhodes) degree and a UED (SA) diploma. He taught at the Lovedale Institute in Alice and in Swaziland before taking up law at the University of Natal in Pietermaritzburg in 1972. He was instrumental in setting up the first legal aid clinic on the Pietermaritzburg campus.
Madala lectured at the University of Transkei until 1980 and thereafter practised as an attorney, and was admitted as an advocate in 1982. In his legal practice Madala handled many human rights cases, and along with several other lawyers established the Umtata Law Clinic under the auspices of the Umtata and Districts Lawyers’ Association.
From 1991 to 1993 he served as Chairperson of the Society of Advocates of Transkei. Madala took silk in 1993 and was elevated to the bench in 1994, becoming the first black judge in the Eastern Cape and the fourth black judge in South Africa. In 1995, the Legal Education Centre of the Black Lawyers Association (BLA) presented him with an award in recognition of his contribution in the area of human rights, and in April 1999 his alma mater, the University of Natal, awarded him an honorary LLD.
In 1994, Madala was appointed by President Nelson Mandela to the first bench of the Constitutional Court.
Described by a former colleague, Grahamstown High Court Judge Jeremy Pickering, as “a very good, decent, modest and honourable man”, Madala performed his duties as a Constitutional Court judge with quiet, unassuming wisdom and, sometimes, understated humour.
In his separate and concurring judgment in S v Makwanyane – the case that dealt with abolishing the death penalty in South Africa – Justice Madala expanded the value of ubuntu in our jurisprudence. He wrote of ubuntu as a “concept that permeates the Interim Constitution generally and more particularly chapter three which embodies the entrenched fundamental human rights.”
In a controversial judgment, the Court had to decide whether Thiagraj Soobramoney was entitled to life saving treatment by the hospital despite the fact that he could not be cured in a short period and was not eligible for a transplant because of his heart condition. Because of lack of resources, the hospital had a policy of prioritising those who could be cured within a short period and those with chronic renal failure who were eligible for a kidney transplant. The Court found that the hospital’s policy was rational and that the Court cannot interfere with hospital policy taken in good faith.
Madala retired from the Constitutional Court in 2008. He remained a member of the Black Lawyers Association, serving as a trustee of its Legal Education Centre – a cause close to his heart. He was also the chancellor of the Anglican Diocese of St John and Deputy Chancellor of the Church of the Province of South Africa.
Madala was married to Patricia Alice Ndileka Madala, a non-practising advocate of the High Court. They have three children and two grandsons. He passed away on 25 August 2010.