History is in the making or, as my colleague would say, “history is made right before our eyes.” This came to mind when the Judicial Service Commission (JSC) said it was recommending Supreme Court of Appeal Judge President Mandisa Maya for the position of Chief Justice. Commissioner Advocate Dali Mpofu SC made the announcement during a media briefing in Johannesburg on Saturday 5 February 2022.

But those supporting transformation of the judiciary should not uncork the champagne until President Cyril Ramaphosa tells the nation who he finally settled for.

President of Supreme Court of Appeal Mandisa Maya at the interviews of the Chief Justice of South Africa held in Sandton on 2 February 2022. (Photo: Felix Dlangamandla / Daily Maverick)

Before going further with any discussion on the final appointment to be made by the President, I would like to touch on the elephant in the room — in the form of the anonymous Professor Balthazar writing in Daily Maverick that the Deputy Judge President of the SCA, Justice Xola Petse, showed bias in favour of Maya. Balthazar’s opinion, seemingly designed to question how the JSC conducts its business, amounted to an attack on Maya and her leadership of the SCA.

“There were thus no probing questions to fairly test the claims that Justice Maya had truly led the SCA into the promised jurisprudence land”, stated Balthazar.

Balthazar described what he calls “the variegated schools of feminist jurisprudence on our legal development” and said Maya had not been asked about it.

The professor’s views should come as no surprise as he has previously argued on the same platform that “a line of questioning that probes the ability of each nominee to meet the exacting standard that the country is entitled to demand should be applied for elevation to the Constitutional Court”.

The only gripe with his assertions is that they predominantly target Maya, instead of being a principled argument against how the JSC conducts or conducted itself. How the commissioners framed some questions were more troubling than the questions themselves. For instance, the “house nigger” question could have been phrased in the context of critical race realism and legal realism. Particularly, asking judges how they see critical race theory that was founded as “a race-based, systematic critique of legal reasoning and legal institutions” would influence or be infused in their interpretation of the Constitution and promotion of transformation in general.

Or perhaps they could have asked candidate how they would use critical race realism in their jurisprudence to “enable and to compel law-making … to take more account … of the social facts upon which law must proceed and to which law must be applied” towards sociological jurisprudence advocated by scholars like Roscoe Pound.

Depending on how you look at it, Maya had to endure the most disrespectful and chauvinistic questions about a country with a female population amounting to approximately 30.09 million, while the male population of approximately 29.22 million is not ready to have a woman Chief Justice.

Another question that should never have been asked was whether she was standing on her own and not as a woman. The question, in my view, suggested that she had made the cut to appear before the JSC because she was female. Is South Africa so unenthusiastic and allergic to women jurists and legal professionals to the extent that even the 30.09 million women would not support Maya as the country’s Chief Justice? The opposite is true.

“The story of the woman judge as one of exclusion and isolation plagued with allegations of bias is well documented,”  notes an abstract to an article by  Ericka Rackley of Durham University titled “Judicial diversity, the woman judge, and fairy tale endings”.

It continues: “Interestingly, despite significant differences in time and place, a common theme unites these tales: the woman judge is a dangerous outsider, a threat to the aesthetic norm. The judicial climate, at least in most of the common law world, is somewhat chilly: reactions to her presence on the bench vary from the largely indifferent to the downright hostile. Why is this? After all, most people, perhaps acknowledging the political and democratic gains underlying calls for a more representative judiciary, would wish to encourage – or at least not discourage – judicial diversity.”

But why should this be the case? Whom am I kidding pretending not to know the answer? Stories of women lawyers, judges and other women legal professionals continue to be those of treatment as minors, isolation, hostility and exclusion. One hopes Maya will change this story, should the President accept the recommendation of the JSC for her to be the Chief Justice.

I must confess that I, too, believe that the JSC is in dire need of an overhaul, particularly after seeing it dabbling in political issues to an unacceptable degree. Acting Chief Justice Raymond Zondo’s recent rejoinder to and stinging rebuke of Tourism Minister Lindiwe Sisulu for sharply criticising and calling some black judges “house negroes” attracted focus with regard to his view on public criticism of the judiciary.

Commissioner Julius Malema sought to school Zondo on the use of the phrase “house nigger” by Steve Biko and Malcom X, which Zondo rejected as an inappropriate reference to black judges. Originally, the house negro or house nigger, as coined by Malcom X, was purportedly the man or woman who, during the days of southern US slavery, worked within the white master’s house and identified with the white man’s interests in opposition to those of the black majority.

If you listen to Malcolm X telling the parable of the house negro at King Solomon Baptist Church in Detroit on 10 November 1963, you would understand why any aspirant leader of the judiciary would not want judges in South Africa to be branded house niggers. This transcribed speech, Message to the Grassroots, reads: “If the master’s house caught on fire, the house negro would fight harder to put the blaze out than the master would. If the master goes sick, the house negro would say, ‘What’s the matter, boss, we sick?’ We sick! He identified himself with his master, more than his master identified with himself. And if you came to the house negro and said, ‘Let’s run away, let’s escape, let’s separate’, the house Negro would look at you and say, ‘Man, you crazy. What you mean, separate? Where is there a better house than this? Where can I wear better clothes than this? Where can I eat better food than this?’ That was that house negro. In those days he was called a house nigger. And that’s what we call them today, because we’ve still got some house niggers running around here.”

But perhaps a jurist in Zondo appreciated that the phrase house nigger has several understandings, including being considered as lapdogs of colonisers and enemy agents, as once retorted by Mbuyiseni Ndlozi of the EFF in an opinion piece in Daily Maverick. “[H]ouse niggers are not blacks, but non-whites – they are the force of colonial governmental sustainability”, said Ndlozi.

Not all black judges can, in the sense of Malcolm X, be identified as social slaves to the political and economic system that oppressed the majority of South African blacks. Anyway, this was one part of the interview that was undesirably interesting and perhaps for another platform ideal of discourse on whether African judges and legal professionals are traitors to blacks, working surreptitiously for white masters.

Daily Maverick writer Rebecca Davis reckons the JSC is “sinking to new lows every day” due to political factors brought to the fore by commissioners, prompting the question of whether the time has not arrived to completely overhaul the JSC and minimise the participation or influence of politicians in the process, which allows for political opportunism. Some legal scholars have argued that “history has proven that when politicians are permitted unfettered powers in judicial selection, the whole administration of justice is more likely to be put into disrepute”. It is nothing new worldwide for judicial appointments to be wracked by controversy. However, the risk that the “whole administration of justice is more likely to be put into disrepute” must be a concern when we reflect on how the JSC conducted itself while interviewing Chief Justice hopefuls. In all the days of the interviewing process, stones were thrown, even at the four top judges being interviewed. On the other hand, political considerations, evaluated properly, may help nurture judicial independence and impartiality when in a form of  “meaningful involvement” that promotes the establishment of trust in the judiciary.

Back to the issue of the final appointment to be made by the President: The constitutional provisions relating to the appointment of judges, in particular the Chief Justice, are very clear and unambiguous. One takes it that the JSC’s robust discussions behind closed doors included mention of the unnecessary theatrics during the interviews; and that Maya’s recommendation as Chief Justice was with due regard to constitutional requirements for appointment.

Some comments after the announcement of Maya as the recommended candidate may be aimed at swaying the view of the President to take a position that the politicians caused “ethical collapse” in the judicial appointment of the next Chief Justice.  Surely, the President will still be guided by “objective criteria” based on merit – qualifications, integrity, ability and efficiency – to exclude political influences, favouritism, conservatism, and other subjective factors.  The hustle and bustle of political machinations at the JSC, though difficult to ignore, must be expunged from any consideration by the President in finally confirming Maya as the country’s historic next Chief Justice.

Of course, the JSC’s recommendation of Maya was never going to go down smoothly, without criticism, from some sections of the population. There is already an opinion that President Ramaphosa must ultimately appoint Zondo as he “has already demonstrated requisite leadership to preserve judicial independence, which is indispensable to strengthen our constitutional democracy”.

Zondo has also been assigned a status of a patriot and a diva as calls are made for him to be the next Chief Justice. “The choice for the next chief justice will be decided soon. Deputy chief justice Raymond Zondo has the superb qualities to be our legal supremo. He is known to capture the people’s imagination like no other chief justice before. He has spawned a fan following that can be the envy of a rock star or a screen diva”, was one opinion.  

As correctly noted by Judge Dunstan Mlambo during his interview, the ultimate decision on who should be the country’s next Chief Justice is for the President to make. The question is whether the President will be guided by “merit” or “seniority” or by “merit and seniority’ or by “political noise”. No provision in the Constitution prescribes seniority as a specific criterion for appointing the Chief Justice of South Africa. When in 2011 former president Jacob Zuma appointed Mogoeng Mogoeng as the Chief Justice he never considered seniority on the bench as a criterion or tradition. If he had, Dikgang Moseneke would have been the Chief Justice as he was the Deputy Chief Justice at the time.

“Many wondered how he had been appointed to the Constitutional Court in the first place,” read one comment.  At the time, there were murmurs of a legitimate expectancy that Moseneke should have been elevated to the position based on, among other things, his seniority. Like Zondo, he provided “much-needed leadership to the judiciary during the period of the position being vacant”.

For nominees like Maya and Mlambo, vying to lead the apex court while coming from “outside”, a consolation was that seniority, or a “growing-your-own-timber or insider approach”, was not a convention in the appointment of the Chief Justices. Even if it had been a convention, it was thrown out of the window with the appointment of Mogoeng Mogoeng. This was a significant development, although many did not see it that way at the time. It created a principle that South African judges are not bureaucrats and that judicial service is not a continuum. Recommending and appointing an outsider of such good calibre as Maya for the position of Chief Justice should not hurt the sentiments of serving justices of the Constitutional Court. Even if seniority was a consideration, one would still have to take into account that Maya is a senior judge in the country, with her court having the distinction of setting precedents for all courts in the country , apart from the Constitutional Court. Not sticking to the seniority and insider convention applied in other countries, like India, where seniority among serving High Court judges is an important and key qualification for appointment to the Supreme Court, means a window of equal opportunity is open for President Ramaphosa to make a historic appointment.

Good luck to Judge President Mandisa Maya, soon to be Chief Justice of South Africa. DM