The prospects and challenges of Chief Justice Mandisa Maya’s tenure

A historic appointment

As new Chief Justice Mandisa Maya settles into her new job this month, what state does she find the judiciary in? What challenges is she likely to face? What should be her priorities in the short, medium, and long term?

Maya’s appointment as Chief Justice is historic in that she is the first woman to hold the position, but she might also be one of the most prepared Chief Justices in history to take the helm.

The judiciary remains one of South Africa’s most vital institutions. It stood firm during the state capture years, but weaknesses are beginning to show.”

A track record of leadership

First appointed as a judge in 2000, she has spent the last 24 years as:

• A judge of the Mthatha High Court (2000 to 2006)
• A judge of appeal (2006 to 2015)
• Deputy President of the Supreme Court of Appeal (2015 to 2017)
• President of the Supreme Court of Appeal (2017 to 2022)

She was Deputy Chief Justice from 2022 until now. Only her immediate predecessor, Chief Justice Raymond Zondo, has a similar record.

Transformation of the SCA

Maya is credited with leading transformation efforts at the Supreme Court of Appeal (SCA), including drawing in more black, and female judges to the court while maintaining high performance.

According to the 2022/23 Judiciary Annual Report, the SCA is still the country’s best-performing court (with an 85% finalisation record against an 80% target) and has held this title since 2018. The SCA is also one of only two superior courts with a majority-woman bench (13 of 25 judges).

As Deputy Chief Justice, Maya wrote several unanimous or majority judgments of the Constitutional Court, which the General Council of the Bar presents as evidence that she commands the respect of her peers. She will serve as Chief Justice until her 70th birthday in March 2034.

With an impressive track record behind her, what challenges will she face in the road ahead?

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Challenges facing the judiciary

The judiciary remains one of South Africa’s most vital institutions. It stood firm during the state capture years, but weaknesses are beginning to show. These are seen in the critical shortage of judges and magistrates across the country. It is also starved of other resources like researchers and administrators, and successive years of budget cuts are now cutting deep into the bone.

For well over 15 years, there has not been any significant increase in the number of judges. While new High Courts have been established in Limpopo and Mpumalanga, several of those judges were seconded from Gauteng and other provinces.

Indeed, Deputy Judge President Roland Sutherland’s recent notice states the earliest one can get a trial date in road accident cases in the Gauteng High Court in Johannesburg is October 2029.

READ | Judicial Crisis: The urgent need for judicial reform amidst mounting backlogs

Through a National Treasury-imposed hiring freeze, no new legal researchers are being appointed at the SCA, the second-highest court in the land, which deals with the bulk of the appeals from High Courts.

Budget allocations and judicial independence

Maya would therefore have to devise plans to tackle the resource crisis facing the judiciary. She will have to press the ministers of justice and finance on a fair budget allocation to run a functional judiciary.

In her May 2024 interview, she stated her priority as asserting the judiciary’s independence over its own administration, operations, and finances.

This echoes the overwhelming sentiment of the Judges’ Conference in December 2023, where judges resolved they wanted to wrestle the administration of courts away from the minister of justice and bureaucrats.

For his part, Zondo said he had tried to take this issue up with the President but had struggled to secure meetings until his retirement date. Maya would, therefore, have to pick this issue up and press the judiciary’s demands.

Leading the new JSC

[Updated September 2024]

Her toughest test over the next 100 days would be leading the “new” Judicial Service Commission (JSC).

READ | Calls to close gap in law after Hlophe’s delegation to JSC

Seven of the 10 MPs forming part of the 23-member JSC are new. Next month, the JSC will undertake the largest round of interviews since 2021.

51 candidates will be interviewed for 26 vacancies at courts around the country, including the The Supreme Court of Appeal, and the Judge President and several judge posts in the Western Cape High Court.

This might present a challenging dynamic, as the progressive reforms initiated under Zondo’s tenure might come undone, and the JSC could again be hijacked for political ends.

There are already court cases to block impeached former judge and MK Party parliamentary leader Dr. John Hlophe from sitting on the JSC.

It will therefore fall on Maya to lead the JSC in carrying out its judicial appointment function with dignity and focus, paying close attention to the high standards set in the judicial selection criteria the JSC adopted recently.

VIEW THE CANDIDATES | See the full list of JSC October 2024 candidates here.

An overburdened judicial system

The Constitutional Court is buckling under the strain of a heavy workload and is taking longer to deliver judgments.

Academics point out skills gaps at both the Constitutional Court and SCA in specialised areas such as commercial law. Maya will need to lead the JSC in its human resources function to plug the skills gaps while devising a strategy to ease the burden on the apex court.

READ | Thapelo Lekabe: Justice Mandisa Maya – A trailblazer who ‘makes things happen’

In the same week the JSC will be conducting interviews, the Judicial Conduct Tribunal will begin hearings on the first major case of sexual harassment in the judiciary, involving the Judge President of the Eastern Cape. While the Chief Justice has no formal role to play in the Tribunal, she will still need to ensure the threadbare JSC secretarial staff are able to manage both processes simultaneously.

There will be intense scrutiny on both the interviews and the Tribunal, as either one or both will affect the course of the judiciary and the prospects of Maya’s tenure going forward.

The evolving role of the Chief Justice

In her 2022 interview, she described herself as a traditional, conservative judge. We are unlikely to see her in the limelight.

However, the role of the Chief Justice has evolved to require the incumbent to lead from the front and speak confidently on behalf of the judiciary, particularly in its defence against spurious political attacks.

Indeed, both former Chief Justices Mogoeng Mogoeng and Zondo’s media appearances have fundamentally transformed the role of Chief Justice to be more present in the media and public life.

We will now need to see Maya take up the mantle and be vocal on issues affecting the judiciary.

Her appointment as Chief Justice must be celebrated as an achievement of women’s advancement in the judiciary and the legal profession.

Her glittering 24-year track record in the judiciary may have prepared her for a time such as this when the judiciary is facing its harshest winter. Will she be the Chief Justice for the season? Time will tell.

– Mbekezeli Benjamin is a research and advocacy officer at Judges Matter, which is a research and advocacy project of the UCT Law Faculty dedicated to monitoring the South African judiciary to ensure transparency and accountability. 

A version of this article was published in News24 (6 September 2024).