A case of deja vu? Justice Mandisa Maya’s interview for Deputy Chief Justice

On Monday (20 June), the Judicial Service Commission will interview Justice Mandisa Maya as the sole candidate for the Deputy Chief Justice position. If appointed, she will be the first woman to hold the position. But Maya is no stranger to firsts, being the first woman President of the Supreme Court of Appeal, a position she’s held since 2017.

Having recently been interviewed for the higher position of Chief Justice, might her interview next week be a case of deja vu, or worse still, a complete waste of time? To answer this question, it might be useful to look at what the role of Deputy Chief Justice entails and what qualities Maya brings to the job.

Maya’s nomination for the role of Deputy Chief Justice

In March, President Cyril Ramaphosa announced the appointment of Justice Raymond Zondo as chief justice. At the same time, he announced his intention to nominate Justice Mandisa Maya as deputy chief justice. Ramaphosa formalized this nomination in a letter to the JSC on 7 April, requesting the JSC’s views on Maya’s suitability for the position.

In terms of section 174(3) of the Constitution, the president is required to consult the JSC and leaders of political parties in the National Assembly on any candidate nominated for the top 4 positions in the judiciary (the Chief Justice, Deputy CJ, President of the SCA, and their Deputy). Although the president must seriously consider the advice given by the JSC and political leaders, he is ultimately not bound by it.

The JSC  assesses a candidate’s suitability through a formal process of submissions and public interviews. This is again the case with Maya’s candidature. However, considering that Maya was interviewed only a few months ago, and the JSC recommended her as their preferred candidate for the higher role of chief justice, some might ask why it is even necessary to interview her again? There is merit in this question but there may also be tremendous value in subjecting Maya to an interview for the specific role of DCJ, which is has important distinctions from the CJ role and needs to be assessed independently.

What does the Deputy Chief Justice role entail?

The role of the Deputy Chief Justice is not defined anywhere in the Constitution, other than that she is a member of the Constitutional Court. However, section 4(2) of the Superior Courts Act of 2013 provides that, whenever there is a vacancy of an absence in the role of CJ, the DCJ steps in to perform the powers and functions of the role. We saw this recently with Justice Zondo serving as Acting Chief Justice when Chief Justice Mogoeng went on long leave and subsequently retired. Section 4(2) continues and says that the DCJ may perform other functions as assigned by the CJ.

Over the years – particularly since the Seventeenth Amendment to the Constitution in 2012 – the role of CJ has burgeoned in breadth and scope, from the ceremonial tasks like presiding over the first sitting of parliament to heading up an entire bureaucracy at the Office of the Chief Justice – a national government department (we catalog more of the CJ’s functions here). It therefore makes sense to delegate some of these functions to a deputy.

Former Chief Justice Mogoeng delegated to Zondo the role of chairing the Judicial Conduct Committee, which is responsible for holding judges accountable in case of misconduct. This negates a possible conflict if the CJ were to be involved in the early stages of a complaint, and later have to be involved again when the same complaint came to the full JSC for a decision on potential impeachment. This rationale still holds true, and it will likely be expected of Maya to chair the JCC. This is a serious responsibility that requires a plan of how to make the judicial misconduct system function effectively and efficiently. We know that currently the system is just not working as well as it should, so a lot will be demanded from Maya on this aspect alone.

The DCJ is also responsible for presiding over hearings in the Constitutional Court in the absence of the CJ. On this score, Maya will draw on her many years of presiding over the appeal benches of the SCA, her experience of acting in the apex court, plus the fact that the majority of the current Concourt justices are her former SCA colleagues. We know that over the next few months Zondo will still be preoccupied with work outside of the Concourt, so Maya will be called up to preside at Concourt hearings sooner rather than later.

The DCJ also chairs the JSC in the absence of the CJ. Maya has served as a commissioner on the JSC for the last 5 years, including chairing its powerful Sifting Committee for the last three, so the JSC is familiar terrain to her. The upcoming round of interviews in October will potentially see an historic number of women judges putting themselves up for leadership positions in the judiciary. It would be significant symbolically to have those interviews presided over by the first woman DCJ. It might also be an opportunity to implement the reforms to the appointment process, including revised criteria, a code of conduct for commissioners and clear procedural rules.

What qualities does Maya bring to the DCJ role?

The DCJ role is first and foremost a leadership position which requires an exceptional jurist to fill it. The incumbent must be an outstanding judge with the intellectual clout to consistently produce high quality judgments – what we call intellectual leadership. Considering the demands of the role, the incumbent must also have a solid track record as a leader in the judiciary, who is able to manage complex systems and relationships and bring people along. An independent mind and unimpeachable integrity are qualities that almost go without saying as they are indispensable to the role. It’s also important for the DCJ to have a clear vision for the judiciary, or at least commit to one set by the CJ.

Maya has a decent body of work as a judge, which speaks to the quality of intellectual leadership. She notes 200 judgments published in the official law reports, with at least two of them written in isiXhosa – a feat no other judge has so far achieved. One of those judgments, Afriforum v Chairperson: Unisa Council found that Unisa’s move to an English-only policy (to the exclusion of Afrikaans) violated the principle of legality and was constitutionally invalid. The other judgment, Mgijima v Premier: Eastern Cape, dealt with a traditional leadership dispute over the chieftancy of the Zulu Traditional Council in Sheshegu (Eastern Cape), and the premier’s decision to recognize one heir over the other. In both judgments, Maya deployed rigorous analysis of both the factual matrix and the complex legal principles, and in a language accessible to a wider audience. Her lone dissent in F v Minister of Safety and Security – a case dealing with a rape perpetrated by an off-duty police officer – was later upheld by the Constitutional Court and shows her independent-mindedness.

During her Chief Justice interview in February Maya gave a compelling vision for where she intends taking the judiciary in the next few years. She spoke of the need to unite all judicial officers towards a common vision, the need to bring more women into the judiciary, and for the judiciary to be allocated more resources and for judges to set the priorities of how those resources are used. Chief Justice Zondo has spoken about his desire to strengthen the independence of the judiciary as an institution during his tenure.

Both these visions are mutually reinforcing, and, if properly implemented, will stand the judiciary at a better footing. With less than 2 years left before Zondo retires, it makes sense for them work together to craft a common vision that Maya will probably be left implement fully.

Maya started her interview for Chief Justice with giving a ‘report back’ on the promises she made when she was appointed as the President of the Supreme Court of Appeal in 2017. She spoke about how collegiality had improved, work was distributed more fairly among judges, and that more women judges were appointed in that period.

From statistics in the Judiciary Annual Reports, the SCA is one of few courts to maintain its performance during the Covid-19 pandemic in 2020 (86% finalization rate, down from 93% in 2019 but still above the target of 80%) but also exceeded its target in 2021 (81% finalization rate against an 80% target). It’s therefore safe to say Maya has proven herself as a leader in the judiciary, able to manage the complexities of a large institution like the SCA.

Questions have recently been raised about Maya’s handling of appeal cases involving former President Zuma. One case involves the reconsideration of the appeal on an aspect of Zuma’s corruption trial, while the other has to do with Zuma’s medical parole. The Daily Maverick criticizes Maya’s role, accusing her of “dragging her heels” and questioning Maya’s administrative ability.

This prompted the Office of the Chief Justice (the national government department) to issue a detailed explanation of the circumstances of both cases. In sum, the delays in processing the appeals seem to relate more to with administrative errors by SCA officials than Maya herself. The OCJ explains that the SCA registrar miscommunicated Maya’s instructions to the parties in respect of the appeal, while Maya disposed of the reconsideration application within 3 days of being seized with it.

While serious questions might need to be asked about the lapse in communication, it does seem too harsh to accuse Maya of impropriety. This is still likely to be an issue that features in the JSC interview on Monday.

A Deputy Chief Justice for a time like this?

There’s no doubt that Maya comes into a judiciary that is facing unprecedented challenges both externally and internally.

Externally, our fractious, almost toxic body politic places the judiciary at the centre of most political disputes, as politicians frequently take their battles to court. Dubious claims of judicial capture animate social media, with judges accused of being in the pocket of one or other political faction. Chief Justice Zondo has come out strongly in defence of the judiciary, but he cannot do it alone.

Internally, there are challenges too. Severe budget cuts mean that there are less resources available to judges to do their work. Libraries, telephones, computers – the basic tools of trade – are becoming harder to come by. Court infrastructure is dilapidating at a rapid pace, with brand new courts in Polokwane, Mbombela and Palm Ridge already falling apart. Numbering only 254, we have too few judges to serve our increasingly litigious population of 60 million people. Having gone without a salary increase since 2016, in real terms judges today earn 20% less than they did in 2014.

All these challenges need a DCJ who will not only be an exceptional jurist on the law, but an excellent leader for the judiciary. On paper, Maya seems to be up for the task but her interview on Monday will tell South Africa whether she is ready to be the Deputy Chief Justice for a time like this.

by Mbekezeli Benjamin and Vuyani Ndzishe

A version of this article was published in Daily Maverick

Mbekezeli Benjamin is research and advocacy officer while Vuyani Ndzishe is research and advocacy intern at Judges Matter, a civil society project that monitors the South African judiciary. Visit www.judgesmatter.co.za and follow @WhyJudgesMatter on Twitter.