South Africa

ANALYSIS

Judge Mandisa Maya will be SA’s first female Chief Justice – but is anyone paying attention?

Judge Mandisa Maya will be SA’s first female Chief Justice – but is anyone paying attention?
Deputy Chief Justice Mandisa Maya. (Photo: Gallo Images / Daily Maverick / Felix Dlangamandla)

Judge Mandisa Maya is set to lead South Africa’s judiciary for the next 10 years after the Judicial Service Commission (JSC) on Tuesday 21 May recommended her appointment to President Cyril Ramaphosa.

The year was 2011, and just one candidate had been put forward by then-president Jacob Zuma to be interviewed by the Judicial Service Commission (JSC) for the post of South Africa’s Chief Justice.

That was Judge Mogoeng Mogoeng, whose nomination had caused horror from many sections of the legal establishment, the press, and a social media platform which was just beginning to spread serious tentacles across the country: Twitter.

The Mogoeng-focused consternation was well-founded. For one thing, there was an eminently suitable candidate for the post who had been overlooked for a second time: then Deputy Chief Justice Dikgang Moseneke. 

For another, Mogoeng’s prejudiced views on homosexuality, his questionable judgments in sexual violence matters and his habit of stirring lavish seasonings of religion into his jurisprudence were by then well known.

Moseneke, who was chairing the JSC session, summed up the concerns in advance: “We have gender sensitivity, we have homophobia, we have the issue of religious faith,” he said at the outset.

Little wonder that the hearings were accompanied by protests outside the venue from activists.

What is more surreal, looking back, is what a public spectacle the hearings were – deliberately held over a Saturday and Sunday at the Cape Town International Convention Centre to enable anyone who felt like it to pull in and observe. The interviews went on for the best part of two days.

Fast forward to May 2024, some 13 years later. How very different things are now – and perhaps not entirely in a positive way.

The JSC interview to confirm the nomination of Judge Mandisa Maya as the country’s Chief Justice was held at a Johannesburg hotel on a Tuesday morning. The audience was comprised of a handful of journalists, and proceedings were wrapped up by lunch.

Of course, Maya is no Mogoeng (and even Mogoeng turned out to be no Mogoeng, at least in the sense that his harshest critics feared). But there has been a striking lack of public engagement on the issue of South Africa’s next Chief Justice – perhaps partly because her identity has been a foregone conclusion since President Cyril Ramaphosa announced Maya as his sole nominee for the post in February; and partly because the nation’s attention is elsewhere, with the elections just a week away.

More problematically, however, this lack of deep engagement seemed to filter down to the JSC itself.

Judge Maya has a tendency to start JSC interviews strong and then almost visibly run out of steam. This was very much the case on Tuesday as well, where the current Deputy Chief Justice was energetic in setting out her vision for the judiciary, and then gave answers of rapidly diminishing substance to the already pretty insubstantial questions posed to her by commissioners.

By the end of the interview, her responses were of astonishing brevity; sometimes just a few words in length. But perhaps that was a reflection of the nature of the JSC questioning, which rarely seemed designed to test her in any significant way.

Yet this is the person who will be leading South Africa’s judiciary until March 2034, holding unquestionably one of the most significant posts in the country.

The Chief Justice, as Maya laid out in her opening remarks to the commission, is responsible for: sitting in the Constitutional Court; administering the apex court, including allocating cases; providing oversight of all South Africa’s courts; chairing bodies like the JSC; determining budgets; swearing in public figures; representing South Africa in various international legal forums; and much else besides.

One responsibility which Maya did not mention, but which her predecessor Judge Raymond Zondo has had to manage on a number of occasions, is that of defending the judiciary against attacks from politicians and maintaining a steely division between the executive and the judiciary.

One of the concerns of legal insiders is that Maya may fundamentally be a more political figure than Zondo. She is known to enjoy the support of the ANC’s National Executive Committee, for instance, although as a trailblazing black woman from the rural Eastern Cape this is not surprising.

Still, it may have raised eyebrows to hear Maya tell the JSC that one of her intentions as Chief Justice was to “intensify the relationship between the leaders” of the judiciary, the executive and the legislature.

Maya’s argument was that much of what the South African courts need to function better lies within the gift of the executive and the legislature, and a closer relationship could thus improve judicial functioning. 

But she was not seriously probed on her thoughts regarding the doctrine of the separation of powers – unlike, say, the candidates for the Supreme Court of Appeal who were interviewed on Monday.

Most of Maya’s ideas for the enhancement of judicial functioning seemed otherwise uncontroversial, and have long been on the agenda of the office of the Chief Justice, including the appointment of more legal researchers, the upgrading of court infrastructure, appointing panels of judges or experienced lawyers to assist with the sifting of cases, and scrutinising the process of appointing acting judges.

Much of this takes money which Treasury has informed the office of the Chief Justice is currently unavailable, however. Asked by Justice Minister Ronald Lamola how she would deal with the problem of ever-shrinking budgets, Maya responded rather vaguely that there were departments which had been excluded from budget cuts.

In her prefatory comments to the JSC, Maya noted that getting a taste of what the Chief Justice job entails has been a “sobering experience”.

Addressing Zondo, she said: “There is absolutely nothing attractive about your job, Chief Justice… If I had my way I would go and hide in a hole somewhere. I’m not sure I want it. It’s too hard.”

She was, needless to say, being at least partly tongue in cheek – and probably also partly adopting the mantle of self-deprecating humility which society still demands from professional women to a much greater degree than from professional men.

But there is little doubt that the post Maya will be given for a decade is indeed a punishing one. 

And while there is much to celebrate about the ascent of the first woman to this job, it would be comforting to feel that there was a greater degree of scrutiny and analysis around this appointment. DM

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  • Skinyela Skinyela says:

    It is good for stability and continuity that she will serve a decade in that office, I doubt if many have served that long before her.

    If we want someone who will serve a full term of 12 years in that office we’ll have to appoint them from outside the concourt and ensure that they still have a minimum of 12 years before they turn 70 years old.

    We will have to find them from law professors, presidents of provincial divisions of the high Court and the supreme Court of appeal.

    In about 3 months time the nation will be back in the JSC for the interview of the new DCJ.

  • Kelushi George Komane says:

    Get your facts right,stop spreading propaganda.fact, it is wrong to say she enjoy support from ANC. Remember Effs Mpofu and Malema are the ones who favored her instead of well qualified and experienced D,Mlambo

    • Kel Varnsen says:

      Indeed. I view her appointment with some trepidation. We will wait and see.

    • Noel Soyizwaphi says:

      In total there are 23 commissioners in yhe JSC now the question is, can the two override decisions of the other 21 members, I doubt it and I think your views are just meant for sensation, really

  • Bob Fraser says:

    Bob F May 22nd at 08:17
    Perhaps the appointment of a female chief justice is the way to go. Let’s see how she deals with matters political, especially the ANC.

  • Bob Fraser says:

    This may well be the way to go. A female mind should think more moderately than any male without favouritism or prejudice to any party or individual. Let’s wait and see though.

    • John Patson says:

      Where on earth did you get that idea from?
      If you look at the political sphere, Indira Gandhi, Golda Meir, and Maggie Thatcher and today’s Giorgia Meloni, Seikh Hasina or Marine Le Pen certainly did or do not “think more moderately…” to name a few.
      And there are as many female “hanging judges” on the criminal circuits (in countries where women are allowed to be judges) as male ones.
      There is nothing related to being female to “thinking moderately” any more than there is to males “thinking radically.”

    • John Patson says:

      Where on earth did you get that idea from?
      If you look at the political sphere, Indira Gandhi, Golda Meir, and Maggie Thatcher and today’s Giorgia Meloni, Seikh Hasina or Marine Le Pen certainly did or do not “think more moderately…” to name a few.
      And there are as many female “hanging judges” on the criminal circuits (in countries where women are allowed to be judges) as male ones.
      There is nothing related to being female to “thinking moderately” any more than there is to males “thinking radically.”

      • Kanu Sukha says:

        A pertinent observation with supported examples. BUT … do not forget that for each of those examples there is the converse of women who have brought distinguished and compassionate ‘leadership’ to bear also. The world seems to be composed of both … and at various times, either of these traits seems to assert itself or be in the ascendancy. One without the other would lack ‘balance’, one might say.

    • Random Comment says:

      Bob has his wife’s permission to post here…

  • Let’s give her a chance she deserves that

  • bigbad jon says:

    There are a few alarm bells ringing, mainly the EFF support (remember the last PP?) but the timing as well. Why not do this next month? This way the ANC has a fan in the highest judicial position in the country for the next 10 years even if they lose the election.

    • Graeme J says:

      You are 100% correct about the timing. Time was running out for the ANC to appoint a fan of theirs… 7 days left in fact.

      But at least Unterhalter got a post, despite open EFF aggression to him.

  • Geoff Coles says:

    When you know she is Ramaphosa’s appointee months ago, and there are no other candidates, the JSC process seems almost pointless. She does seem to be somewhat radical with EFF support.

  • Hilary Morris says:

    The question is, too, would a greater degree of scrutiny and analysis make the slightest difference? The ANC is without interest in outside comments or thoughts – witness Ramaphosa’s lip service to NHI consultation. We seem to have been rendered punch drunk and stupified by the futility of protest. And as I type that I know it IS the only way to bring about change. Not sure that Justice Maya will be in the best interests of the country, reportedly having some questionable friends.

  • A great feat for gender equality and a giant leap for South Africa’s judiciary

  • TP Mudau says:

    This is such a poor article with inferences are assumptions that are of no value. The doctrine of separation of powers is merely that an its success is not determined by how adversarial the different spheres of government are to each other. It merely requires oversight and that could still be achieved with all of them working together. The Constitution deliberately makes it almost impossible to dismiss a judge purely to ensure the judge is not beholden to the President and the political party that appointed her as Zuma learnt with Mogoeng.

  • William Dryden says:

    I still can’t understand how a radical Malema can be accepted on the JSC interview panel as well as that loud mouth Mpofu, makes a mockery of the whole selection process.

  • Random Comment says:

    Let’s be brutally honest, she was appointed for “gender diversity” (because she’s female, not male); and not on merit – both of which are unfortunate for the judiciary, the rule of law and jurisprudence.

  • George 007 says:

    Unlike most she is at least very well eductated with a law degree from Duke University in North Carolina. And she did it on a Fulbright Scholarship. Let’s hope she lives up to her alma mater’s standards.

  • Nnete Fela says:

    As one chap pointed out, the reason women get less recognition and less pay than men is because men choose much harder careers such as lawyer, doctor, mechanic, judge etc, whereas women choose to be female lawyers, female doctor etc

  • Andre Du Toit says:

    We really need to get beyound whether someone sits or stands when they go to the little room, the colour of their skin, religion, language or whatever one wants to pigeonhole people and get the best person for the job. Merit should be torch to shine on the decision.

  • Noel Soyizwaphi says:

    While Judge Maya’s appointment is backed by all 23 members of the JSC, may be the president should never have put her as “the chief justice in waiting”. I picked up from the article that the way she was interviewed is now being questioned. I also felt that her pre-appointment may have put pressure on her. The article also portrays her as not focused during the interview. On the comment she is said to have made about the Chief justice job being so hard and that she wishes she could go hide in some hole, I so wish I knew what her follow up statement to this was, because when the statement is left like that, it can leave the impression of a weak candidate. However, I do hope that anointing a top judge in this manner will never be repeated. There is a statement in the article I feel has a potential to lead readers down a wrong path about a subject, Judge Maya in this case. The comment reads as follows: I quote “one of the concerns of legal insiders is that Maya may fundamentally be a more political figure than Zondo. She is known to enjoy the support of the ANC’s National Executive Committee, for instance, although as a trailblazing black woman from the rural Eastern Cape this is not surprising”. End quote. This statement raises many question that remained unanswered in the article, such as who are these legal insiders? Do they include some that were overlooked by the JSC? Are these our esteemed judges? Were there no other was they can raise such serious concerns?

  • Casey Ryder says:

    Frankly, one would hope that she is an outstanding jurist with impeccable integrity. What identity category she fits into has no impact whatsoever on either of those two fundamental requirements.

  • Barry Saayman says:

    “Still, it may have raised eyebrows to hear Maya tell the JSC that one of her intentions as Chief Justice was to ‘intensify the relationship between the leaders’ of the judiciary, the executive and the legislature….. and a closer relationship could thus improve judicial functioning. ”

    The Honourable Judge Mandisa Maya’s positive influence in her capacity as CJ over and guidance of the Executive and Parliament to strengthen the rule of law and independence of the judiciary should be welcomed without reservation.

    Judge Maya is a force to be reckon with and obviously knows what she want and how to get it and most certainly neither a naïve nor inexperienced jurist and public administrator.

    The Judiciary will be in good hands.

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