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Justice Mandisa Maya

Capacity: Deputy Chief Justice
First appointed as judge: 2000 (Eastern Cape High Court)
Further appointments:
2006 – Judge, Supreme Court of Appeal
2016 – Deputy President, Supreme Court of Appeal
2017 – President, Supreme Court of Appeal
2022 – Deputy Chief Justice

Gender: Female
Ethnicity: African
Date of Birth: March 1964
Qualifications: BProc (WSU) LLB (UKZN) LLM (Duke, USA)

Key judgments:

Candidate Bio:

Justice Mandisa Maya is one of South Africa’s most senior judges, having first been appointed to the High Court in 2000 and now serving as the President of the Supreme Court of Appeal since 2017 – the first woman to do so. She is seen by many as the frontrunner to be chief justice.

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 ‘90s 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.

Maya spent the second half of the ‘90s practising as an advocate before acting as a high court judge from July 1999 until April 2000. She was permanently appointed to the high court in Mthatha in 2000 and served there until her appointment to the SCA in 2005, where she became the first black woman on that court.

Maya became deputy president of the Supreme Court of Appeal in 2015, before assuming her current position as president in 2017.

Maya has a solid track record as leader in the judiciary. As head of the SCA, she has had to contend with what were reported to be serious tensions between judges across racial and gender lines, coupled with allegations of bullying. Several of her colleagues have spoken in glowing terms about how, in dealing with these problems,  Maya was able to fundamentally changed the SCA’s institutional culture, fostering collegiality and demolishing stifling hierarchies. Seven women judges were appointed in Maya’s five years as head of the SCA, compared to the nine appointed in the 100 or so years prior. The racial demographics of the SCA now more closely match that of the country.

When the Covid-19 pandemic hit and SA went into lockdown in March 2020, Maya is praised for leading the best response in the judiciary by quickly moving to virtual hearings and effectively clearing the SCA’s workload for that term. Virtual hearings are now the default feature of the appeal court and will be for the foreseeable future.

Maya is also respected as an administrator. The SCA has a punishing culture of high performance and has consistently been ranked as one of the best-preforming courts in the country. As president, Maya is responsible for maintaining this performance through allocating work evenly amongst the judges and making sure that they deliver on this performance. On average, the SCA hands down judgment within one month of the hearing and has consistently finalised more than 80% of its caseload in the last few years.

Maya has served as a member of key institutions in the judiciary such as the Judicial Service Commission and the SA Judicial Education Institute since 2017.

Maya acted as a judge of the Constitutional Court in 2012. She is therefore familiar with the inner workings of a court that, should she be appointed as chief justice, she would lead as the ‘first among equals’. Maya appeared the most qualified candidate when she 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. Despite Maya being recommended to President Jacob Zuma by the JSC, she was overlooked in favour of Judge Raymond Zondo, her fellow competitor for the chief justice position.

But the Constitutional Court has changed dramatically in the decade since she was last there and she might still be seen as an outsider, unable to foster the collegiality that has been a hallmark of the apex court since inception.

Related to issues of the Constitutional Court, Justice Maya has been indirectly involved in a spat involving her daughter, Ms Wela Mlokoti, and Gauteng High Court Judge Fayeeza Kathree-Setiloane, over allegations that the latter mistreated Ms Mlokoti while both were working at the Court. Although these allegations were finally resolved in Kathree-Setiloane’s favour, they still dominated a series of subsequent JSC interviews where Maya was forced to recuse herself from the proceedings each time.

Maya’s time outside the Constitutional Court is, ironically, also a distinct advantage against her competitors justices Zondo and Madlanga. Because Constitutional Court justices are limited to 12-year terms before they are forced to retire, Zondo only has about three years remaining while Madlanga only has four. Maya will serve the full 12 years. The General Council of the Bar notes this as significant as Maya will be “well-positioned to implement and, if necessary, revise the norms and standards of the judiciary without disruption, as contemplated in section 165(6) of the Constitution.”

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’s independent-mindedness was best demonstrated in her 2011 dissenting Supreme Court of Appeal judgment in Minister of Safety and Security v F. A policeman, Mr van Wyk, was convicted of rape – 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 at the time 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.”

In the Department of Correctional Services v Popcru judgment, she found the dismissal of correctional services officers for refusing to cut their dreadlocks to be unfair.

In AfriForum v Chairperson of the Council of the University of South Africa, Maya made history by writing the first recorded judgment of a superior court in South Africa in isiXhosa.

Maya is also active outside the judiciary. In December 2021 she took over from President Ramaphosa as the second chancellor of the University of Mpumalanga.  Also in late 2021 she was elected as the Regional Director for West and South Africa with the International Association of Women Judges, an organisation which she has been long-time chairperson of the local chapter.

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.

Asked what she regards as her most significant contribution to the law and the pursuit of justice, Maya, in her nomination form submitted to the JSC says that:

“I believe that my experiences as a black woman from a rural background have provided the judiciary with a critical diversity of thought and valuable insights into a complex, vulnerable and huge component of our society.

I have over the years encouraged a number of women to make themselves available for judicial appointment and simultaneously nagged various heads of court to give women acting judicial appointments. I have also offered support to those colleagues once appointed as I believe mentorship of new judges is crucial in strengthening the judicial institution.

I have a deep respect for the rule of law, and I am committed to the values enshrined in our constitution. For this reason and a love for my country, I allowed myself to be persuaded to become a judge at a relatively young age of 35 years…I (and only a tiny handful of other judges) will have served as a judge for thirty-five years and dedicated most of my adult life to serving my country when I retire.”

Should she be appointed as deputy chief justice, Maya would bring a wealth of knowledge and experience of the judiciary, as a judge of 20 odd years and a judicial leader in recent years. She also has the intellectual clout to restore the gravitas of South Africa’s apex court. These qualities far eclipse the fact that she is also a woman.

June 2022 Deputy Chief Justice interview

February 2022 Chief Justice interview

April 2017 JSC interview

April 2017 JSC Interview Synopsis: 

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