Last week we witnessed a rather embarrassing and antagonistic interview process by the Judicial Service Commission (JSC) as its commissioners presumably tested the rigours and juristic prowess of Chief Justice hopefuls Judge Mbuyiseli Madlanga, Judge President Mandisa Maya, Judge President Dunstan Mlambo and Acting Chief Justice Raymond Zondo.
The targeted onslaughts of commissioners Julius Malema, Dali Mpofu and Thandazani Madonsela, as they made a farce of the proceedings, have been well reported. Subsequently, on 5 February, the JSC announced that it thought Maya was the best candidate for the position of Chief Justice.
There are those who have seemed to reject Maya being put forward as the potential next Chief Justice.
Particularly vociferous has been Nicole Fritz, the director of the Helen Suzman Foundation (HSF), who tweeted: “Many will want to applaud the possible appointment of our first female CJ, but the recommendation of Maya J as a result of a tainted, irrational, degraded process is no victory at all and far from suggesting that women might take the helm of the judiciary on the basis of merit and their own intrinsic worth instead perversely suggests that they can only do so as a result of corrupted, degraded process.”
On 9 February, the HSF sent out a press statement that rightly asserted that the interviewing process had been corrupted, in that:
In contravention of its own practice and basic principles of justice, the JSC failed to notify JP Mlambo ahead of time not only of a damning but a potentially defamatory line of questioning it intended pursuing. This line of questioning related to an entirely unsubstantiated rumour of sexual misconduct and was sustained for what would have been near half of the time originally allocated for his interview.
Explicit political agendas were pursued. It is worth noting that, towards the end of Zondo’s interview, he became, it seemed, entirely superfluous to the interview, as it was used instead by Malema to wage a political fight with Justice Minister Ronald Lamola about his involvement in the appointment of acting justices to the Constitutional Court.
The differential treatment given to the candidates in their questioning raises issues of impartiality and objectivity on the part of the JSC. Granted, each candidate has an individual life and judicial experience, but why, for instance, one candidate was asked about their role in the liberation struggle when others were not, or why Maya should attract so many questions relating to gender, in an approach that seemed unquestionably patronising at times, made for a situation in which it was next to impossible to adequately or meaningfully compare the candidates.
All points which I, and I’m sure the majority of people who watched the interviews, agreed with. Where my opinion diverges is the assertion that they make of Maya, that, should she be appointed, she would be faced with “a poisoned chalice” by assuming the position because of the tainted interview process.
I disagree because Maya did in fact represent herself, her educational excellence, impeccable juristic record and demonstrable leadership abilities quite well. Her interview may have been tainted by unsavoury behaviour, but I don’t think it was enough to completely overshadow her. I would therefore be open to a more substantive discussion on the exact shortcomings.
What one needs to take into consideration is that an interview is the final, not the only, stage of the hiring process. It must also be kept in mind that, in this particular process, the President has the final say and not the JSC.
Who among us has not experienced a hiccup in an interview that was not a true reflection of our capabilities and yet still got the job because our other qualities carried us through? I know I have. I hold a similar view of the other interviewees because their mettle shone through the mischievous web that was being spun by commissioners Malema, Mpofu and Madonsela.
A progressive discussion would be the review of the calibre of commissioners and interviewers at the JSC and the weighing of whether they indeed fit the profile to further the mandate of the commission. Chief among these is an allegiance to the values and mandate of the JSC and the Constitution, not personal scores, having been established in terms of Section 178 of the Constitution. What the JSC Act is not clear on is how complaints against commissioners are to be handled and the disciplinary action that can be taken against them.
The events of last week have called the integrity of the commission and its commissioners into question and what we should be looking towards are the next steps in terms of disciplinary action that will be taken against the commissioners in order to guard against this in the future, and also to restore public confidence in the body and its work.
I also think there needs to be greater clarity on what is being called for after the interviews last week: are we asking for last week to be scrapped and for the process to start all over again because it was tainted? Or are we questioning the capabilities of Maya to ascend to the office of Chief Justice? DM168
This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Exclusive Books and airport bookstores. For your nearest stockist, please click here.