Mandisa Maya, the acting President of the Supreme Court of Appeal (SCA), admits to being such a speedster in her youth that her accumulation of traffic fines could be deemed an “embarrassment”.
A revelation contained in the Judicial Service Commission (JSC) questionnaire she submitted in anticipation of her interview for permanent appointment, it is a minor speed-bump in a stellar career that is widely considered an autobahn for excellence.
The first female Deputy-President of the SCA, Maya, if appointed, will again make history as the first female head of the appellate division.
Maya has been commended as a diligent and hardworking jurist with an excellent grasp of the law and the progressive values of the Constitution by the advocates who have appeared before her, and in the wider legal fraternity. She has been described as a judge who is sensitive to the contradictions in a society wracked by gender-based violence and socio-economic inequalities, and is most independent-minded too.
Maya appeared the most qualified candidate when she unsuccessfully interviewed for a position at the Constitutional Court in 2012 following the retirement of Justice Zak Yacoob. At the time the Court had just two women on its Bench and Maya’s appointment would have helped address the Constitutional imperative that the judiciary broadly reflect the demographics of South Africa.
The General Council of the Bar (GCB), in its submissions to the JSC at the time, noted that Maya possessed an “excellent grasp of constitutional issues both in relation to technical concerns and Bill of Rights issues”.
Her judgments, according to the GCB, demonstrated a “consistent understanding of the need to balance the enforcement of constitutional rights against the need for government to be able to perform its functions efficiently”. At the time, she had 114 reported high court judgments and 43 reported judgments at the Supreme Court of Appeal, to which she had been permanently appointed in 2005. The GCB went on to commend Maya for her “excellent legal mind” and a “fine grasp of the law across a broad spectrum”.
Despite Maya being recommended to President Jacob Zuma by the JSC, she was overlooked in favour of Judge Raymond Zondo (Judge Zondo has now been nominated by President Zuma for the position of Deputy-Chief Justice and will be interviewed by the JSC for this position on the 3 April 2017).
In 2012, Maya endured a more difficult interview than Zondo. She was asked to comment on the “trend” in the media of identifying judges through their judgments, as being progressives or conservatives. She was also quizzed on whether judges who ruled against the executive were “anti-government” and hence “said to be progressive”, on her understanding of the separation of powers doctrine and whether there were “judicial cults” developing around certain judges at the Constitutional Court, where she had previously acted.
A battery of questions, some unrelated to the candidate, from which Maya emerged unflustered and cooler than a wet cloth in wintertime.
Maya’s independent-mindedness was best demonstrated in her 2011 dissenting Supreme Court of Appeal judgment in Minister of Safety and Security v F. A policemen, Mr van Wyk, was convicted of rape and while her colleagues found that the state was not vicariously liable for his actions, Maya differed.
Noting that there was “no question” that Van Wyk’s actions had nothing to do with his duties as a police officer, Maya felt the judicial enquiry should go further to establish whether there was a “sufficiently close link between his acts for his own personal gratification and the State’s business.” Maya found it “quite pertinent” that the rape survivor had known her assailant was a police officer when she accepted his “second bogus offer to take her home” and that this knowledge had “influenced her decision and quelled her earlier misgivings”.
“[B]y offering to rescue and take home in a police vehicle alone, a vulnerable child stranded on a dark, deserted riverside in the dead of night in those circumstances, Van Wyk subjectively placed himself on duty and acted in his capacity as a police officer. … In my opinion he placed himself on duty as he was empowered to do by law. And once he did, he assumed the status and obligations of an on-duty police officer. For that reason, I would find the Minister vicariously liable.”
Her ruling was vindicated when, on appeal, the Constitutional Court reversed the SCA’s majority decision. Her judgments and sentencing in criminal matters had caused the GCB to note that Maya; “has a finely developed sense of the need to deal with social issues that disproportionately affect women and children, such as rape and sexual assault. Her judgments at the same time indicate that she is acutely aware of the need to balance all interests involved, including those who are found guilty of such crimes.”
Maya is clearly a supporter of the JSC’s deliberations regarding who to recommend for appointment to the Bench being kept behind closed doors. This was obvious in the 2016 majority judgment she wrote at the Supreme Court of Appeal in Helen Suzman Foundation v Judicial Service Commission and Others.
In a unanimous judgment, Maya found that; “it must be accepted that during the course of the deliberations adverse remarks will be made, which although not necessarily actionable in law, may yet be hurtful to a candidate and cause reputational damage harmful to his or her professional career. This would apply with greater force to a sitting judge who applies for a higher position on the Bench with the potential of eroding public esteem in the judiciary upon which the ultimate power of the courts rests.”
In 2006 she was commended for her “balanced approach” towards all parties in Ford v Ford, a matter which concerned a mother wanting to relocate to the United Kingdom and take a minor daughter — whose custody was shared with her ex-husband — with her. The GCB said Maya demonstrated a “good use” of both domestic and international case law “in reaching a conclusion that avoided the emotional pitfalls that often beset such cases”.
Born in 1964 in Tsolo in the rural Eastern Cape, Maya holds a B.Proc from the then-University of Transkei (Unitra, now Walter Sisulu University), an LLB from the University of KwaZulu-Natal and an LLM in labour law from Duke University in the United States.
In the 80s, she worked as a court interpreter and prosecutor before joining the Women’s Legal Defense Fund in Washington DC. In the early nineties Maya spent stints as a law advisor at the department of justice and a lecturer at Unitra.
In 1994, as the country headed to its first democratic elections, Maya worked as an investigator for the Independent Electoral Commission, looking into allegations of white farmers in the Eastern Cape who were destroying the election material of so-called “black political parties” and preventing their black workers from organising or attending political events.
She spent the second half of the nineties practising as an advocate before acting as a high court judge form July 1999 until April 2000. She was permanently appointed to the high court in Mthatha in 2000 and served in the Eastern Cape division until her appointment to the SCA in 2005. She was appointed deputy president of the Appellate division last year and has also previously acted at the Constitutional Court.
Maya has delivered several papers at international law conferences and was a USAid Fullbright scholar, a fellow of the Georgetown University Gender and Law Policy Programme and a Commonwealth Foundation Fellow.
The racial and seniority divisions at the Supreme Court of Appeal (SCA) were laid bare during acting president Mandisa Maya’s interview for permanent appointment to the position.
The Judicial Service Commission will confirm Maya’s suitability to become president of the SCA — the first woman to do so — with President Jacob Zuma after an interview which lasted just over two hours.
In that time Maya told the commission that it was an “open secret that we are not the most collegial of courts”. She went on to describe a workplace where black and white colleagues did not mix in shared spaces like the tearoom and where senior judges appeared to intimidate their less experienced colleagues and those who were acting, into surrendering judgment writing to them.
While describing her vision for turning the court around Maya talked of how, while acting as head of the appellate division for six months last year, she found herself “begging” colleagues to attend a diversity seminar to which there had been “vociferous opposition”.
Consensus was finally reached and the seminar was held in mid-February, on the weekend before the first term of this year started: “That experience was precious,” said Maya, “it was cathartic… We were all able to just say what it is that is bothering us.”
She said she was “shocked” when she reported for work the following Monday and found that “for the first time” in over a decade at the SCA, she found “judges sitting and mixing” with each other.
“It opened the door to the possibility of us to get along with each other… and to relate to the people who came to our court,” she observed.
The monopolisation of judgment writing by senior judges was also being addressed, Maya said. Pointing to the final term of 2016 as an example, she told the commission that judgments had been spread across the Bench with each judge average two judgments.
The appellate court, the second highest in South Africa, is renowned for its “robust”, sometimes brusque, treatment of counsel appearing there. Maya, described her division as extremely hardworking but having gained a certain “notoriety” in that regard, said that while she did not want to tamper with judge’s rigour, some of her “targets” included improving the “collegiality and softening the face of the courts” so that lawyers left satisfied that they had ventilated their arguments.
A star in the domestic judicial firmament, Maya was appointed to the Bench when she was 35 years-old. When asked about the challenges facing gender transformation in the judiciary, Maya expressed exasperation that, having been asked that question every time since her first interview in 2000, she saw very little change in the legal fraternity. She said very little had changed, from briefing patterns for female lawyers and the cases that female judges were allocated, which affected the experience, especially in niche legal fields, one could gain.
One keeps “chipping away” at the edifice of patriarchy, Maya told the commission.
Read the full interview transcript: JSC interview transcript – Judge Mandisa Maya