SA is on the brink of welcoming a female leader, Mandisa Maya, as judicial chief. When a woman ascends to the helm of the country’s judiciary, it will be a breakthrough. Despite the statutory imperative to guarantee the bench reflects the country’s broad racial and gender makeup, SA has never before boasted a woman chief justice. That may be about to change, but the process which brought SA to this critical juncture has been an abomination, to put it politely.
Last week, Supreme Court of Appeal (SCA) president Maya secured the Judicial Service Commission (JSC) stamp of approval for appointment as chief justice. The recommendation was apparently “unanimous”, with 22 commissioners viewing Maya as the least “political” of the four runners. Unlike others, Maya did not have to answer whether she was “for” the president and “against” his predecessor, since the question was never posed.
It is true Maya was well prepared and had presented a solid vision for the judiciary. In anticipation of objections to her candidacy, she argued that the SCA would continue to run well, listed several reported judgments, claimed good relationships with current apex court judges, and asserted arriving from the SCA would enhance synergy. Maya reported back on commitments she made to the JSC. She raised successes in turning around the SCA, highlighting its gender transformation. Maya suggested that the Constitutional Court’s turnaround time would improve with four additional justices and two benches sitting concurrently.
She vowed to drive modernisation. Costly paraphernalia (such as leather diaries) must be forfeited for core resources (such as legal journal subscriptions). As for controversy, she had to answer for recusing herself in matters involving two judges.
First, Maya withdrew from JSC and SCA hearings about Western Cape judge president John Hlophe. The JSC found him guilty of gross misconduct, and, depending on the outcome of a court case, he may face impeachment. Maya praised Hlophe as being like an older brother to her. Second, Maya withdrew from JSC interviews with Fayeeza Kathree-Setiloane because her daughter was among the clerks who filed a complaint. EFF leader Julius Malema, who sits on the JSC, suggested Maya had done the right thing.
In contrast, Gauteng judge-president Dunstan Mlambo was blindsided. With admirable stoicism he fielded all manner of questions, including — most egregiously — queries about allegations based on rumours apparently spread from his own court’s corridors. In recent months, these unsubstantiated claims made for dinner-party gossip as the leadership race gained pace. Acting chief justice Raymond Zondo was pilloried, including for his work on the state capture inquiry and associated litigation.
Public debate, including concerns over highly inconsistent questioning and complaints about extremely poor chairing, suggest citizens are deeply vested in who leads SA’s courts. The gravity of this appointment is well understood, including by those in the JSC. Politicians and legal practitioners alike ambushed the candidates, notably Mlambo and Zondo. The rulings of full benches in politically sensitive matters became the topic of heated debate. At one point the interviews teetered on the brink of collapse with justice minister Ronald Lamola and Malema raising their voices as day four wore into night.
Chairing this shambolic process was Maya’s subordinate in the SCA, deputy-president Justice Xola Petse, who hardly bridled aberrant commissioners and showed himself to be a weak leader. In the rare instances he called order in interviews, it was long after the damage was done: allegations, no matter how spurious, had been ventilated, and smear campaigns had been broadcast widely. Expunging the record post facto was pretty much useless.
The interviews with four judges that President Cyril Ramaphosa referred to the JSC caused a brouhaha, and with good reason. In less politically treacherous circumstances, appointing a woman such as Maya to be “first among equals” in the Constitutional Court would only be a welcome move. Competing political and judicial interests have complicated the decision to the point where Ramaphosa, known to hum and haw about executive decisions, has a near impossible task.
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