President Cyril Ramaphosa is still waiting for a formal report from the Judicial Service Commission recommending justice Mandisa Maya as its choice for SA’s next chief justice. But the president will have to decide whether to back the commission’s candidate or choose another, in the face of a possible legal challenge to the process.
The JSC announced on Saturday evening that it had opted for justice Maya, who is president of the supreme court of appeal and would be SA’s first woman chief justice if she were to be appointed. This came after a week of interviews with four chief justice hopefuls that was blighted by controversy, including claims of an unsubstantiated smear campaign and complaints of sexist questions.
The commission is now at risk of facing a legal challenge, with at least one non-profit considering taking the body to court over the controversial interviews and Rhodes University associate professor of law Helen Kruuse writing to the JSC to raise alarm over its conduct.
“The Presidency awaits the report of the commission,” Ramaphosa’s spokesperson Tyrone Seale told Business Day on Sunday. Doris Tshepe, spokesperson for the JSC, confirmed the commission would report to Ramaphosa “soon”.
Tshepe said the report would detail what set Maya head and shoulders above three other three candidates shortlisted by Ramaphosa and interviewed last week: apex court justice Mbuyiseli Madlanga, Gauteng judge president Dunstan Mlambo, and acting chief justice Raymond Zondo.
The Helen Suzman Foundation (HSF) is considering legal action over the controversial interviews, which it described as shambolic and characterised by aggressive political point-scoring. “We haven’t taken any decision to contest this. We are still considering whether to do something,” said legal counsellor for the HSF Anton van Dalsen.
“We don’t have a preference for one candidate over the other but we’re very disappointed to see a gathering which should be considering a very serious matter degenerate into a shambles,” he added.
Once Ramaphosa consults political party leaders, and provided he agrees with the JSC, Maya will become the first female chief justice in SA in almost 30 years of constitutional democracy. On Sunday, the Black Business Council (BBC) put its weight behind Maya.
Her win in the JSC interviews follows a singular process for deciding who should succeed Mogoeng Mogoeng, who retired in October after taking long leave in May. Zondo has been acting for most of the past year.
Ramaphosa elected to consult widely on his decision. He called for public nominations and appointed an advisory panel to sift through more than 300 submissions. The panel reported to Ramaphosa, who sent four names to the JSC.
Previously, the president has only referred one name for interview as a prospective chief justice. Thus, there has never been a discrepancy between the judge the JSC interviewed and the one the president appointed.
JSC spokesperson Dali Mpofu said deliberations were extensive. “What made our task difficult was exactly that the candidates were all of a high quality, and the uniqueness of the process, which was also unprecedented,” Mpofu said once the JSC’s closed session ended on Saturday.
Mbekezeli Benjamin, researcher for the legal interest non-profit Judges Matter, insists Ramaphosa’s approach has been fruitful. “The open and competitive process yielded a field of four very strong candidates,” he said.
Section 174(2) records the “need for the judiciary to reflect broadly the racial and gender composition” of the country, and this must be taken into account when appointing judges.
Professor Ntombizozuko Zozo Dyani-Mhango, who heads the University of Pretoria’s department of public law, said Ramaphosa’s decision, like any of his constitutional powers, could be subjected to judicial review in the courts. But she said Maya is a worthy candidate, who deserves the nod regardless of what transpired in the interviews.
Craig Watt-Pringle SC, who chairs the General Council of the Bar (GCB) of SA, said, “We would have liked for her to be recommended as the first woman chief justice in a process that was fair and seen to be fair.”
Watt-Pringle, who wants politicians excluded from the JSC, criticised the chair for poor leadership. Usually a chief justice leads the JSC’s sittings, but since the post is vacant and stand-in Zondo was interviewed, appeals court deputy justice Xola Petse presided.
The JSC, by law, includes six representatives from the National Assembly and four from the National Council of Provinces (NCOP). Watt-Pringle said there should preferably be no politicians in the commission and there were certainly too many now, but Dyani-Mhango counters that this is in the constitution, and is not unique to SA.
For the HSF’s Van Dalsen, however, “the thing that disturbs us most is the aggressive political point scoring”.
Benjamin insisted criticism about last week’s interviews reflect the JSC’s faults, not those of the candidates. “It should use these criticisms as an opportunity for serious reform. Immediate reforms would include written criteria, written rules of procedure, and a code of conduct for commissioners that must be enforced diligently,” he said.
Correction: January 7 2022
An earlier version of this article incorrectly said Helen Kruuse was a JSC commissioner,
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.