Supreme Court of Appeal president Mandisa Maya is a shoo-in for the second most senior judge position in SA, after she succeeded in convincing members of the Judicial Service Commission (JSC) of her suitability in an interview on Monday.
After her interview, and after brief deliberations, JSC spokesperson Doris Tshepe announced a decision by the majority that Maya was a suitable deputy chief justice. The JSC has recommended President Cyril Ramaphosa appoint Maya, who is the sole candidate.
By law, the president must now consult political leaders in parliament before he can make the appointment.
The day’s agenda was to determine Maya’s suitability to be second-in-command of SA’s judiciary and a judge in the highest court, but issues at the Supreme Court of Appeal (SCA) soon emerged.
Maya said “lapses in the registrar’s offices” at the SCA left her disappointed. “We have expected the OCJ [Office of the Chief Justice], which is the supporting arm of this institution of ours, to take care of those challenges and unfortunately they didn’t,” she said.
Maya’s innovation of writing a judgment in isiXhosa led to praise and criticism. Parliamentary speaker Nosiviwe Mapisa-Nqakula encouraged other judges to also pen rulings in their home languages.
But North West judge president Monica Leeuw asked why Maya had not written her judgments about customary marriage in isiXhosa, arguing those judgments had wide relevance. “For me, it was about cultural pride. It was about me writing in my language,” replied Maya.
With regard to perennial SCA issues, she told the JSC she was using her own mobile router to participate in the interview virtually. “The internet at the court is highly unreliable. We don’t even have a working telephone system,” Maya said.
She told the JSC she and her team were doing extra work to mitigate a recent crisis in the registrar’s office at the SCA. “Our registrar left at the end of May leaving a huge mess,” she said.
Maya also faced questions on her friendship with Western Cape judge president John Hlophe. The JSC found him guilty of gross misconduct and referred him to parliament for an impeachment vote.
Maya told justice minister Ronald Lamola, who was among 23 JSC commissioners, her key role as deputy will be to support chief justice Raymond Zondo and perform tasks he delegates. She highlighted “harmony” in her visions for the judiciary.
The DA’s Glynnis Breytenbach asked Maya about incidents of sexual misconduct of which she may have become aware in the past, and about which she might learn in future. “Would you approach the colleague implicated and discuss it?” Breytenbach asked.
“I would in my court. I would in any court as the leader of the judiciary … it’s something that needs to be treated with a great deal of sensitivity and tact,” said Maya.
Maya previously raised the absence of a sexual misconduct policy when she was interviewed for the role of chief justice in February. On Monday, she told the JSC a policy document to prevent and properly address allegations of sexual misconduct in the judiciary was ready for a judges colloquium. She hoped the gathering would occur soon, she said.
Sections of the JSC record were expunged in February after claims of sexual misconduct against one of the judges in the running to become chief justice were raised from the floor without warning. The allegations raised were based on rumours, not a formal complaint to the JSC, and this process went against the commission’s protocols.
Mbekezeli Benjamin, researcher at the non-profit Judges Matter, which monitors issues affecting the judiciary, thought the JSC was “much tougher” on Maya compared to four months ago when she competed to become top judge. “Overall, I think she did well,” he said.
Her promotion to the Constitutional Court bench is a matter of time, and this will leave a vacancy in the SCA. “The JSC interview at this point is part of a consultation that the president is required by the constitution to do,” explained Benjamin
Ramaphosa will also have to nominate a candidate to take over at the SCA. The candidate will also undergo an interview with the JSC before being appointed.
Based on Maya’s remarks about challenges at the appeals court, particularly in its registrar's office, the incoming SCA president will need improved support from the OCJ.
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