Chief Justice Mandisa Maya being interviewed for the position by The Judicial Service Commission in February. She was the only woman shortlisted. Picture: Timothy Bernard / Independent Media
By Sipho Seepe
The appointment of Justice Maya as a successor to the outgoing Chief Justice Raymond Zondo has been long coming. It should also be seen as a corrective measure after she was overlooked by President Ramaphosa in favour of Justice Zondo.
The Judicial Services Commission, tasked with, among others, appointing judges, had recommended Justice Maya for the position following the dismal performance of Justice Zondo during the interview.
According to the uncontested reports “Judge Zondo received only three votes, compared to 19 votes for Judge Maya. He was not only the worst performer of all contenders for the prized position but the only candidate to receive a serious adverse character comment from the JSC, which remarked that ‘efficiency and discipline did not appear to be his strengths’.”
Despite damning submissions by Brian Molefe, the then Group Executive of Eskom, Zondo’s failure to implicate Ramaphosa in his report regarding the latter’s alleged dealings with Glencore, was read as some form of quid quo pro to pave his appointment as Chief Justice.
Glencore has since had to fork out $152 million to resolve a Swiss bribery investigation. The company reportedly pleaded “guilty to multiple counts of bribery and market manipulation ... following US, UK, and Brazilian investigations that uncovered corruption at one of the world’s largest commodity traders”. The company had allegedly agreed to pay penalties of up to $1.5bn.
If her background is anything to go by, Maya’s appointment brings both gravitas and freshness to the Office of the Chief Justice of the Republic. Her nomination for the position was supported by the country’s deans of the faculties of law. As I opined before, her contribution to the legal profession saw her being awarded three honorary doctoral degrees.
And despite a demanding schedule, having to relentlessly juggle administrative duties and co-function as a judge, she has handed down more than 200 reported judgments on a wide variety of legal subjects. She is the only judge to have broken a record by having two judgments reported consecutively in the South African Law Report in one volume. Only one judge had achieved that before her.
Although she correctly scoffs at the idea of being seen as a woman judge (she prefers to be seen as a judge who happens to be a woman), one hopes the experience of being both a woman and mother will bring a particular perspective to that of being male in the world.
Maya can hold her head high. A woman of firsts. Including the first black woman to lead the Supreme Court of Appeal. Being the first Chief Justice of the Republic crowns it all. In a country where black women face the triple oppression of race, gender and class, Justice Maya is a source of inspiration. Her appointment sends a message: IT IS POSSIBLE.
In 2020, Maya brought freshness to the bench when she wrote “a judgment in isiXhosa, her mother tongue, about the right of Afrikaans students at Unisa to be taught in their mother tongue”. The decision to do so is more than “deeply symbolic”. It is groundbreaking. The use of Afrikaans and English as languages of practice in our courts is part of the enduring legacy of both apartheid and colonialism.
It is indicative of the fact that the colonial project had succeeded in dehumanising Africans to the extent of their loss of sense of selfhood.
The practice of using English and Afrikaans is not only in itself a form of denial of justice to many who do not speak these languages. It is also an insult to both them and their Creator as it perpetuates the myth that justice can only be transacted through a “foreign language”. This is not only an insult to Africans but it is reflective of the fact that some of our best minds should be subjected to a heavy dose of decolonial programming.
This lacuna is deliberate and unsurprising. The decimation and marginalisation of the African knowledge system, which is part of the colonial project intended, inter alia, to “create in the victim a Stockholm Syndrome reaction and attitude”.
“Once visited on the intellectual heritage of the group, it has lasting effects that transmute into internalised replicable self-destruction of the intellectual heritage. It becomes self-sponsoring, self-propelling, self-promoting and almost irreversible in consequences.”
As Justice Maya assumes the Office of the Chief Justice of the Republic, her success, or lack thereof, will be judged against at least three areas. First, how she fares against her predecessors. Second, the challenges of the Office, and lastly the objectives she has publicly set for herself. Arguably all three are interlinked.
The EFF statement on the dysfunctional Labour Court system not only provides a summative assessment of Zondo’s performance as Chief Justice but also highlights the challenges that Justice Maya should attend to.
In its statement (August 02 2024), the EFF contends that the seeming dysfunctionality of the Labour Court, as evidenced by the ever-growing backlog of unattended cases, should be attributed to Zondo’s poor administration.
“Even during his term as Chief Justice, Zondo allowed this outrageously dysfunctional administrative situation to persist. Despite identifying the serious problems at the Labour Court and Labour Appeal Court as "administrative challenges" during his Judicial Service Commission (JSC) interview for Chief Justice, and pledging to prioritise their resolution, he has done nothing. Instead, the situation has only significantly worsened.”
The EFF concludes: “This is characteristic of Zondo as the most ineffective and incompetent Chief Justice that South Africa has ever had. His term was marked by mediocrity and administrative procrastination. Zondo’s sad legacy is that he extended the paralysis and administrative chaos he left behind at the Labour Court to the entire judicial system in South Africa.”
Understandably, Justice Maya will be judged on whether she succeeds in resolving the current dysfunctionality that continues to plague the system. For its part, the EFF wasted no time in pointing out that it “will closely monitor progress in this regard, particularly under the leadership of the new Chief Justice, Mandisa Maya, who must address this as a priority”.
The issue of asking presiding officers to recuse themselves in instances where individuals have expressed a sense of apprehension of bias is a major concern.
Disappointingly, black judges regard such requests as a challenge to their judicial authority. Judges such as Piet Koen have tended to take a different approach. Having previously expressed himself on a matter involving former President Jacob Zuma, Koen had this to say. “I have to recuse myself from the trial. It is what a sound administration of justice, the requirements of the Constitution, and my conscience dictate – the integrity of the judicial process must be protected against any reasonable taint of suspicion.”
During her appearance before the Judicial Service Commission, Justice Maya expressed similar sentiments. Time will tell whether she will remain true to this principle.
Tragically, Zondo’s refusal to recuse himself set in motion events that not only triggered the biggest social unrest since 1994 but also led to the loss of life by more than three hundred South Africans in July 2021. This remains the most traumatic episode of post-1994. In the fullness of time, someone must account for the lives lost.
Justice Maya can learn from mistakes made by her predecessor who seemed to lack judicial discernment and often exposed himself to ridicule. Ours is a robust democracy. You mess up, expect a response.
The leader of the EFF felt compelled to rebuke Justice Zondo. Malema averred. “(The) Chief Justice is too forward and has got no limits and he thinks that judges are untouchable. That’s why he has given himself the responsibility to enter even a political terrain.
“What do judges have to do or say regarding the outcomes of political conferences? Judges must know the limits and Zondo has got no limits. For some reason, I think that Zondo wishes to be a TV presenter ... he never misses an opportunity to go on TV.”
Another attention-seeking Chief Justice is the last thing South Africa needs. True justice is no public show exercise. It is far too precious for that. It requires hard work and a fixed dedication on justice for all. In this respect, Justice Maya has what it takes. It is time for Justice Maya to show her mettle.
* Professor Sipho P Seepe is a higher education and strategy consultant.
** The views expressed in this article are those of the writer and do not reflect the views of The African