This publication has recently been the site of a debate about allegations that the President of the Supreme Court of Appeal, Justice Mandisa Maya, repeated allegations of sexual harassment against Gauteng Judge President Dunstan Mlambo. The article by amaBhungane went on to question her involvement in politically sensitive cases. Khaya Sithole has called into question the speculative nature of these claims.

Who is correct is not the province of this column, save for the need to reflect on the reasons for this controversy. Two candidates for the highest judicial office, both with distinguished records, have now become victims of the disaster that was the hearing conducted by the Judicial Service Commission (JSC). 

Thanks to the ineptitude of the acting chair of the JSC, Justice Xola Petse, Dali Mpofu SC was allowed to launch an unprecedented personal attack on Justice Mlambo without any justification. It is all very well pointing to the belated decision to strike these questions, but in the court of public opinion, which was the obvious purpose of this line of question, the damage had been done. 

The purpose: Mr President, you cannot even consider Justice Mlambo for CJ — think of the political consequences! 

The upshot is that this issue has now tainted and polluted the entire process, most recently prompting allegations against Justice Maya. Thus, the very institution which the JSC is designed to promote is now the loser. And frankly, it is not only Mpofu and Justice Petse who are to blame. Not one commissioner objected, as they were obliged to do, when Mpofu began his assault.

That it can now be argued that Justice Maya has avoided politically controversial cases is another example of the JSC’s biased performance. Instead of the sweetheart interview of Justice Maya, had the JSC done its job and asked each candidate about their judicial record as it did with justices Mlambo and Zondo, the record of each applicant could have been debated fairly. 

As it happens, Justice Maya has penned judgments that show a clear commitment to constitutional development, albeit that they are not directly within the political domain. As an illustration, in Sandvliet Boerdery v Mampies and another (2019) Justice Maya, on behalf of a unanimous Supreme Court of Appeal, confirmed the right to bury a deceased family member on land owned by another who refused permission, relying on the Extension of Security of Tenure Act (ESTA). In so concluding, Justice Maya wrote: 

“The approach to be adopted in ascertaining the meaning of ESTA is established. Regard must be had to its purpose and the mischief it seeks to remedy, i.e. securing the tenure of occupiers of land and granting them the dignity of which they were deprived under the apartheid system.

“Its provisions must be accorded a generous interpretation, in a manner that is consistent with the Constitution, so as to afford this vulnerable class of people the fullest protection.”

But as the JSC failed lamentably to do its mandated task, we are all left none the wiser as to the comparative records of the four candidates. The irony is that the mechanism that the President established to decide which nominees should go forward to the JSC — rather than making his nomination, as had previous presidents — namely the committee chaired by Judge Navi Pillay, may well have provided him with a far more accurate assessment of the four nominees. 

But this committee’s deliberations are not in the public domain. The upshot is that the JSC has ensured that whoever is appointed as CJ will assume office in a climate of some controversy. Bravo, the JSC!

The pity of this entire saga is that, as a consequence of the President’s ill-advised idea of conducting a beauty/popularity debate for the position of CJ, the judiciary has languished for months without a Chief Justice. The court over which the Chief Justice presides, as with the rest of the institution, is suffering, if opinion polls are any guide, from a declining level of legitimacy.

As an example of the contributory factors, take the new practice of the Public Protector and other disgruntled litigants who lose their appeal in the Constitutional Court and then apply for rescission of the judgment, which results in a never-ending spiral of litigation. 

The invitation to keep appealing to the very court that has dismissed the appeal was of course issued in that ill-considered hearing of the Zuma rescission application. That this was dismissed by the majority of the court has not prevented the same ploy from being recycled. In one case, the Constitutional Court has sat for aeons on an application of the Public Protector. And one can safely bet that her new application to rescind the decision that Parliament can proceed with her impeachment will also drag on and on. And on.

The country in general, and the judiciary in particular, need judicial leadership. As the rescission saga illustrates, our legal system does not seem able to complete cases, much to the detriment of legal certainty and expedition. The new CJ has a huge task ahead. The conduct of the JSC has only made this task more difficult. DM