Eleven years ago, during the rather turbulent time in the judiciary when the country was waiting for a Chief Justice to succeed Sandile Ngcobo, Professor Richard Calland had the great fortune of attending the Judicial Service Commission (JSC) interviews where Justice Mogoeng Mogoeng was interviewed for the position.

Mogoeng, one of the more junior members of the Constitutional Court at that stage, had emerged as the surprising choice for the position after being nominated by the then president Jacob Zuma. The political shenanigans leading up to that moment – including what Deputy Chief Justice Dikgang Moseneke may or may not have said at his birthday party in January 2008, and the invitation to stand that Justice Sisi Khampepe may or may not have received – all had a material influence on how Mogoeng’s nomination was received by the legal fraternity and society at large. 

Mogoeng’s short tenure in the Constitutional Court, coupled with some controversial judgments and poor judgment exercised in his pre-Constitutional Court days – particularly when he failed to recuse himself as a judge from a case involving his own wife – meant that anyone with an interest in the process had a litany of comments they could submit to the JSC for deliberation.

The various submissions relating to his comments about rape victims in cases he had presided over, together with his confession that he wasn’t really a man who harboured a passion for writing articles, meant that many observers harboured serious reservations about his suitability as Chief Justice. Even before the start of his interview – where he came armed with a 49-page opening statement – the question of how well he could acquit himself in front of the JSC consumed the legal fraternity. As he prepared to sit down for his interview, advocate Tembeka Ngcukaitobi – sitting next to Calland – referred to it as South Africa’s Clarence Thomas moment.

The comparison was quite appropriate. Clarence Thomas had been George HW Bush’s choice for a position on the US Supreme Court in 1991. Thomas – a staunch conservative – was replacing the great progressive of US jurisprudence, Thurgood Marshall, who served as the first black member of the US Supreme Court. As it turned out, the contrasts between Marshall and Thomas were as vast as the divide between the political parties that had nominated them for the court. But what consumed the bulk of Thomas’s interrogation were the allegations of sexual impropriety levelled against him by Anita Hill just after he had been nominated. The problem with the US model is that once a candidate is nominated the interview process is a ceremonial engagement that does little to persuade politicians to opt otherwise.

As Mogoeng took his seat as the only nominee of Zuma the question of how he would deal with the inevitable questions about his previous judgments – particularly relating to sexual violence matters – was of keen interest. Quite importantly, the nature of contentious questions that were to be fielded was known to some degree and persuaded Mogoeng to put together his 49-page pre-emptive missive against his detractors. Like Thomas 20 years before him, Mogoeng survived the inquisition and was duly appointed as South Africa’s Chief Justice. 

The tales of the two justices resonated with me this week as I read an article in Daily Maverick titled “Judge Maya allegedly repeated sexual harassment allegations about Judge Mlambo before interview”. The article, appearing first in amaBhungane’s Centre for Investigative Journalism site, has its genesis from the events relating to South Africa’s current quest for a replacement for Mogoeng himself.

In 2021, President Cyril Ramaphosa took the unusual step of presenting four candidates for “vetting” by the JSC as he sought to make up his mind about who the next Chief Justice should be. The four candidates – Acting Chief Justice Raymond Zondo, Justice Mbuyiseli Madlanga, President Mandisa Maya of the Supreme Court of Appeal, and Gauteng Judge President Dunstan Mlambo – were all meritorious in their own right. 

Over the course of the interviews, the judges were interrogated on various issues that were supposed to assess their suitability for office as Chief Justice. Whilst contentious and controversial issues are part of the process, a longstanding practice of the JSC is the soft alert that each candidate gets in advance to make them aware that potentially delicate questions will be posed to them. This gives them an opportunity to prepare cogent responses that – when one considers the high stakes at play – may be the difference between a recommendation and public humiliation.

However, by the third day of the interviews, the implicit agreement was spectacularly upended when JSC commissioners sprang a surprise on Judge Mlambo regarding rumours of sexual misconduct whispered against him. The opening up of that box – at a point when he had not been alerted – meant that he had to fashion a response against pointed questions relating to the rumours. By the time the chair of the session belatedly ruled the questions inappropriate and directed that they be expunged from the record, the damage had been done. For the JSC, which had been forced to rerun its April 2021 interviews due to issues like the ambush of candidates on matters they had not been alerted about, this development reflected poorly on its chair in particular.

But perhaps more surprisingly are the developments since then. Various publications, commentators and legal scholars have written extensively about how the ambush on Mlambo, based on rumours that hadn’t even been placed on record as an official complaint, severely undermined his prospects of appointment. In fact, it would be a mission to find a credible publication in South Africa that did not take the view that the ambush was inappropriate mainly because it centred on corridor talk rather than substantive complaints. Through it all, the consensus was that Dali Mpofu in particular had behaved poorly in leading the ambush. The key point of that consensus is that it is inherently unfair to elevate matters of corridor talk to substantive allegations when the affected candidate has little to work with in formulating a response of any kind. 

As Mpofu was excoriated by various publications and legal scholars, including in this publication, it became evident that his conduct was regarded as unbecoming.

The crux of the article seems to be the insinuation that Judge Maya – a candidate against Mlambo in the quest for appointment – was herself directly instrumental in inflaming the embers of the untested allegations. The headline – and the primary prism of engagement with readers – states that Maya ‘allegedly repeated allegations about Mlambo before interview’. Immediately, a few problems emerge from this phrasing.

Firstly, in stating that Maya “repeated allegations”, the article immediately departs from what was the line of march when Mpofu made the same “allegations” – the explicit articulation that these are actually untested rumours. Rather, we now see them elevated to the realm of what is the starting point in any adversarial judicial process – the lodging of allegations. For anyone reading an article relating to legal matters, the wide cleavage that exists between rumours and allegations is as vast as the resultant legal possibilities. Rarely has anyone found themselves hauled before the courts on the basis of corridor talk. Rather, those who may wish to elevate such corridor whispers to the realm of allegations immediately assume the burden of finding some semblance of proof to graduate rumours into allegations.

Regrettably, amaBhungane is not unaware of this nuanced difference because, once one reads the article, the second paragraph immediately clarifies that such allegations, “have not risen above the level of rumour”, which is essentially the position correctly adopted by all objective media publications in the aftermath of Mpofu’s utterances. The problem with this approach by amaBhungane is that it used a platform that is trusted by so many to wade into the same murky pathways Mpofu was legitimately accused of traversing a few weeks ago.

But, by the time one belatedly arrives at this paragraph, the glaring statement that lingers on is the assertion that “Maya repeated allegations”. This, of course, already persuades the reader to regard Maya as the culprit in a case that – only in later paragraphs – turns out to not be a case at all.

Second, the heading stretches itself to say that Maya did all of this “before [the] interview”. Naturally, the implication of this is clear – Maya did this just ahead of the interview in which such allegations were then used to ambush her competitor. Remarkably though, when one then expects the article to frame the context in terms of time and proximity to the JSC interviews themselves, no such information is immediately forthcoming. So, rather than the article saying that Maya repeated these allegations on the eve of the interviews to those that sat on the JSC for example, which would mean she directly contributed to such questions being posed, the article retreats. Instead, we then hear that she “personally” repeated the allegations – not to particular individuals who would have any participation in the JSC process at all, but rather all we are told is that two sources stated this to amaBhungane.

Many paragraphs later, the article belatedly states that the first time Maya committed this egregious sin was last year ahead of the call for nominations – in other words, long before anyone knew that the President would go for a public call process. How Maya could have envisaged that she needed to light the fire of the rumour mill against Mlambo of all people is not explained by the article or indeed common sense.

The article then puts the bland allegation that if the claims it levels against Maya are true, this raises the question of whether Maya should have disclosed her repetition of such rumours following Mlambo’s interview. Such a proposition stretches the parameters of common sense. 

The closest we get to establishing the persuasion behind this line of phrasing is when we then hear that Maya apparently conveyed the allegations to “influential colleagues/acquaintances”. In other words, having opened with the bombshell that Maya “repeated allegations before the interviews”, the amaBhungane article now takes its readers on a goose chase where its sources are now not the first-hand sources but rather relay claims that Maya had said such to unnamed acquaintances. 

Even more bizarrely, the article misses an opportunity to lend credence to the story by failing to explain how influential such acquaintances and colleagues are. Are they members of the JSC who then posed the questions, thereby establishing a clear link between Maya’s alleged utterances and the ambush on Mlambo? Are they merely fellow judges who the sources have decided are characters of influence? That the article unburdens itself from this responsibility is truly regrettable.

But, unfortunately, it gets worse.

The article then puts the bland allegation that if the claims it levels against Maya are true, this raises the question of whether Maya should have disclosed her repetition of such rumours following Mlambo’s interview. Such a proposition stretches the parameters of common sense. 

First, anyone who watched the Mlambo interview knows very well that Mpofu himself was unable to put a name to whoever told him of such rumours. Rather, Mlambo himself indicated that a retired judge had mentioned that there was some corridor talk. Neither that retired judge nor those “influential colleagues and acquaintances” mentioned in the article had seen it fit to lodge any complaint against Mlambo. In other words, even if Maya had indeed repeated the rumours in another forum, the idea that the burden rests on her to then alert the JSC that she may have also said such a thing, as if it were her alleged utterances that led to the questions, is simply nonsensical.

Second, what seems to have been uniquely forgotten by the article is that the entire line of questioning was actually expunged from the record of deliberations. In other words, even if Maya had made the type of disclosure the article is suggesting, it would be an extraordinary submission relating to an issue that officially doesn’t exist in the record of those deliberations. The question of whether any of the JSC commissioners actually excised the memory of the questions in their deliberations is a secondary point. The primary point is that expecting Maya to make some submissions in relation to an officially non-existent matter defies logic. What could the JSC commissioners possibly do with such a confession?

But perhaps it is in its next utterances that the article substantively degenerates. The article alleges that since the “JSC’s controversial recommendation to President Cyril Ramaphosa to appoint Maya, questions have also been raised about Maya’s conduct as a judge”. This is a rather extraordinary take by amaBhungane. 

First, in 2021, Ramaphosa – in yet another illustration of his commitment to consultation – invited the public to comment on the prospective candidates, including Maya. That was the initial opportunity for those with serious concerns about Maya’s conduct as a judge to make their views heard. There is no evidence in the public domain that such concerns were raised. While that may be due to the opaque nature of the first process, by the time Maya’s name made it to the JSC shortlist, the same public, the article’s unnamed sources and “influential acquaintances” had the opportunity to express concerns about Maya. None of this seems to have happened.

What is surprising for amaBhungane, is that we are not told whether – in drafting the article – the writers actually asked these individuals whether they had made such submissions to the JSC process. Confusingly, the article then provides what might sound like a first-hand account but actually isn’t. It states that “one of these individuals confirmed directly to us that this occurred and the second individual – whose identity was withheld – confirmed the allegation against Maya via a trusted source. Both parties wanted to stay unidentified for professional reasons”.

Curiously, the first individual isn’t confirming that Maya said anything, but rather what we get is that the individual confirmed that Maya said something to the unknown influential persons. The second individual isn’t actually the one engaging with amaBhungane to confirm what Maya said, but rather it is a trusted source confirming that someone said that Maya said something. And given the fact that we are told that such individuals are “influential”, it is quite surprising that the article would accept a proposition that influential individuals who have legitimate concerns somehow simply refused to table them properly for “professional reasons”.

The sum of these issues, and the implication created by the article, is that such concerns were not important enough to be posed to Maya in the interview process, but are now sufficiently important to require public deliberation. To buttress this narrative, the amaBhungane article then says the “JSC controversially voted to recommend Maya”. The natural progression of this line of march is that we start off with the allegation that Maya fuelled the sexual allegations (rather than rumours) against her competition to influential people ahead of the interview where Mlambo was ambushed and Maya – surprise, surprise – emerged as the controversial choice. AmaBhungane surely cannot dispute that such a narrative is an unfortunate characterisation of the process, whose only consequence is the demonisation of Maya.

All of this reminded me of an ongoing conversation I have been championing with media practitioners against the trend of shifting the burden of positive rebuttal to the subject of allegations. This phenomenon relates to the practice prevalent primarily in social media where rumours and allegations of no substance and outright fabrications with little evidence to support them are put to individuals with the expectation that such individuals will rebut the accusations, or accept them as fact if they are not denied. This practice manifests in many forms and the South African judiciary itself has not been spared.

When allegations of bribes and being on secret payrolls are put in the public domain, the world we live in does not attribute a presumption of innocence on the target, rather we now live in a world where the manufactured consensus is that one is guilty until and unless they table proof otherwise. In other words, if I accuse you of being on the payroll of a drug dealer, the new standard of public discourse is that you will prove otherwise by showing me your bank statements; if not, you are implicitly admitting my allegations by refusing to disprove them. While the genesis of this practice may be difficult to trace, it is perhaps the journalism profession that needs to deliberate on how far its practices have gone in cultivating a similarly dangerous state of affairs. A common practice in many newsrooms is to provide a list of questions to an intended subject of an article with the request for a response at a particular point in time. The obvious problem here is that there are no clear rules explaining what is reasonable.

Rather, some journalists seem to labour under the impression that their intended subjects are readily available to attend to queries and then meet the journalist’s deadlines. This is naturally an ambitious proposition that occasionally borders on unfairness. The immediate problem it creates is that far too many pieces make it to the public domain without the affected subject having presented their case. Rather, the profession’s solution is to put a disclaimer to the effect that “the subject had not responded by the time of going to print”. While there will indeed be recalcitrant subjects who have no desire to respond anyway, readers cannot distinguish between the late responders and the recalcitrant ones. For both types of subjects, however, the initial publication and substance of the article weigh more heavily and leave a larger imprint than the disclaimer about “at the time of going to print”.

These twin challenges – the heavy burden of positive rebuttal and the fluid definition of fairness in soliciting responses – loom large in the amaBhungane article about Maya. The article states that 14 questions were sent to her. We now know that she refused to respond to any of them holistically. However, throughout the article, a selection of some of these questions are strategically reproduced to create the impression that it was specifically this question and that question that she refused to answer. And the graver the allegation contained in the unentertained question, the greater the impact of her non-rebuttal. There is an accusation that Maya may have simply misinterpreted facts about Mlambo. But it gets bizarre when the article then proposes that once she understood the facts – which we still don’t know if she ever knew – she “could have arguably stepped forward to disclose her alleged role in repeating the rumours”.

Yet again the article puts the burden on her to explain why she didn’t do this suggested step by saying she “declined to answer”. Throughout all of this the initial hurdle – whether any of this is actually true – has yet to be conquered, but the article soldiers on, pregnant with the theory that all its questions and assertions require a rebuttal from someone who hasn’t even acknowledged the fundamental basis of the questions.

Later the article indicates that amaBhungane conducted an investigation about Maya’s past conduct as a judge. Whether this was before or after the interviews is left to one’s imagination. Surprisingly, the article says its sources included “several senior judges”, who now have reservations about Maya’s attitude and temperament. Again, given the unique duty on such senior judges – if they have such reservations – to table such concerns through the JSC processes, it is remarkable that the article ventures no further in telling us why such senior judges would sit on such “explosive” information until now.

To end this remarkable exercise in speculative innuendo, the amaBhungane investigators eventually end up presumably at the Supreme Court of Appeal itself where we are told that, according to a senior colleague, Maya broke some longstanding consultative processes and imposed herself as a divisive leader. While one colleague may indeed harbour such reservations, it surely cannot be beyond the competence of amaBhungane to equally inform its readers that time after time, judges who have served at the Supreme Court of Appeal have stated – in front of the JSC – that it was Maya’s leadership that bridged divisions and cultivated collegiality in that court. Whether the article disputes that, does not absolve it of its responsibility to state that the comments of its single source are so overwhelmingly disputed by all those brave enough to actually put their views on public record in JSC interviews. Unsurprisingly, the amaBhungane investigation closes off by putting that assertion, that she is a divisive leader, to Maya, and then immediately reminds us that she declined to respond to what is apparently a massively important question.

While candidates for judicial office are well aware that controversial issues will be raised and should be raised, the question of substantive fairness is something owed to all of them, whether they be Clarence Thomas, Mogoeng Mogoeng, Dunstan Mlambo or Mandisa Maya. Those with convictions about the lack of suitability of the candidates are only expected to meet one burden – providing substance to their cause for reservations. This includes media publications that hold enormous sway in the public discourse, like Daily Maverick and amaBhungane.

The fact that the amaBhungane uses rumours and allegations interchangeably is just one of the fundamental problems with the article. But perhaps more glaring, is the fact that in carrying this article such an esteemed publication as Daily Maverick has conducted itself in a manner reminiscent of the conduct it previously excoriated. Given the fact that the publication is infinitely more influential than Mpofu in influencing the public discourse, the burden on Daily Maverick and amaBhungane to do better is greater than what anyone may expect from Mpofu.

For all its flaws – and heaven knows there are many – the JSC at least still attempts to find some semblance of providing an opportunity for candidates to state their case in response to properly ventilated allegations. When they get it wrong – as they did in the case of Dhaya Pillay in 2021 and Dunstan Mlambo in 2022, the JSC still has the presence of mind to excise the poisonous variable from its ultimate deliberations – even under duress. That amaBhungane held itself to a lower standard than this through this article is disappointing.

One suspects that somewhere in its editorial engine room the amaBhungane team is acutely aware of the flaws in this article. Its byline states that the article was written by “AmaBhungane Reporters”. And given the fact that little in the way of research underpinned the article, one can only wonder why this article needed an army of writers – or any writer at all. DM 

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