Chief Justice Mandisa Maya. (Gallo Images / The Times / Simphiwe Nkwali)
Judge Mandisa Maya, the supreme court of appeal (SCA) president, on Monday blamed the court’s former chief registrar and staff at the office of the chief justice (OCJ) for administrative failings at the appellate court that caused consequential delays in two cases involving former president Jacob Zuma.
In both instances — the arms deal corruption trial and the appeal to the ruling that Zuma’s release from prison was unlawful — correspondence reportedly did not reach Maya’s desk promptly and parties were left waiting for her response. As a result, both matters are scheduled to proceed in August only.
Asked about this in her interview with the Judicial Service Commission for the post of deputy chief justice, Maya bluntly said that former registrar Paul Myburgh, who left at the end of March, left the general office of the SCA in a shambles. She also suggested that the OCJ, and in particular former chief director of court administration Nathi Mncube, had been aware of the problem but had failed to resolve it in short order.
Maya said the problem was so dire that she, along with her office staff, had to intervene to resolve administrative issues even though this was not her job.
“There are lapses in the registrar’s office, there have been long-standing lapses and everybody involved knows what the cause is, what they are and we have expected the office of the chief justice which is the supporting arm of this institution of ours, to take care of those challenges and unfortunately they did not do their part,” she said.
“Mr Mncube, I’ve forgotten the precise description of his position now … he was responsible for court administration, he knew very well, he and even the SG, everyone there knows about the challenges in our general office.”
Maya said she was forced in the last term to enlist her secretary as well as those of other judges at the SCA to ensure that the registrar’s office continued to function.
“We have done our very best to make sure things do not collapse in our registrar’s office but there is only so much that you can do,” she said.
“We had these unfortunate incidents which forced me, you know, to physically man the registrar’s office. In the last term most of my work was making sure that things are actually done in that office.”
She said this extended to making sure court orders were typed and delivered and urgent correspondence was attended to, including requests from litigants.
“So I ended up being a registrar myself, I and my office manager and my secretary, and it was very difficult … because our registrar left at the end of May, left a huge mess in the office. Well that’s a story for another platform.
“But the OCJ luckily has promised, we were just waiting for this interview, the term to end and this interview to be done, and then thereafter we would have a meeting with them, I and DP Petse and our court administration committee so that they can finally sit down and they can tell us exactly what they, the OCJ, is going to do make sure that the staff in that office does its work.”
Maya stressed that she could not be expected to micromanage court administration.
“I cannot be a registrar. I cannot be expected to go and sit in the registrar’s office and ensure that a party who expects an expedited date of hearing, has had their request sent to my chambers. I don’t have that capacity. Those people down there are expected … to do their bit, make sure that the requests that come into the court are processed as it should be.”
She added that once work was brought to judges’ chambers it was done expeditiously.
Zuma petitioned Maya in April to reconsider the SCA’s refusal of leave to appeal against the dismissal by the Pietermaritzburg high court of his special plea challenging the standing of the state prosecutor in his corruption trial, Billy Downer.
On 17 May, Downer informed the court that he had been told the day before that Zuma’s application had not yet reached Maya’s desk, prompting Judge Piet Koen to remark: “Normally these matters are dealt with fairly quickly.”
Koen was compelled to postpone the case because Zuma invoked section 18 of the Superior Courts Act, which stipulates that, barring exceptional circumstances, a decision that is subject to an appeal or an application for leave to appeal, is suspended. He set a new return date of 1 August.
Shortly thereafter, it was announced that Maya received the application on 17 May and dismissed it three days later.
“President Maya became seized with it on 17 May 2022 and not since March 2022 as has been widely reported in the media. She attended the application expeditiously, in line with the conventions of the SCA, and thereafter issued an order disposing of the application on 20 May 2022,” according to a statement for the office of the chief justice.
Zuma remains on medical parole pending the hearing of the appeal to the high court ruling in December 2021 that held that his release was unlawful and ordered his return to prison.
Judge Elias Matojane found that the decision to grant him medical parole some two months into his 15-month sentence for contempt of court was fatally flawed, because former director-general of correctional services Arthur Fraser failed to follow the prescripts of the Correctional Services Act. The court rejected Zuma’s plea that the months spent on medical parole should be counted as time served.
Once Matojane granted leave to appeal, the Democratic Alliance and the Helen Suzman Foundation wrote to Maya to ask that the matter be dealt with expeditiously in the first term of the court. Part of their reason for doing so is the concern that should normal time frames apply, the matter might only be heard after the date when Zuma would have been released, had he not been granted parole.
There was a risk, they argued, that should the appellate court disagree with the high court’s refusal to count the time spent on parole and under correctional supervision, Zuma would escape the punishment imposed by the constitutional court for defying its order to testify before the Zondo commission.
Myburgh reportedly informed the litigants in December that Maya had declined the request because they failed to advance reasons. But it later transpired that the letters in which they set out their reasoning never reached her.
In a subsequent email, Myburgh seemingly erroneously informed them that Maya indicated that the hearing could not be accommodated in the second term of the court either.
After the litigants made their frustration known to the media, Myburgh drafted a sworn statement in which he said the litigants’ initial letter was forwarded to Maya, as was a second letter about the presumed length of the case, but these were never acknowledged by her. Maya countered that the first letter never reached her, although the second did.
She followed up on the matter with Myburgh in February, asking whether there had been any further correspondence from the parties and said, in an email: “It can be heard in May. We can’t issue directives until they tell us when they can file the record.”
The appeal will now only be heard in the third term, which commences on 15 August.
Mncube said it would not be appropriate for him to respond to Maya’s remarks. Myburgh declined to respond. He has returned to the Free State high court, where he worked before joining the SCA. It is reliably understood that he requested some two years ago to be relocated.
In reply to a question about reconsideration applications in a broader sense, Maya said she was flooded with such and had written to Justice Minister Ronald Lamola to ask that the provision in the law be repealed or amended.
Maya was nominated by President Cyril Ramaphosa for the position of deputy chief justice after he ignored a recommendation from the JSC that he name her as chief justice, opting to appoint Raymond Zondo instead. The president said the commission had exceeded its mandate by prescribing to him, rather than advising him of the relative merits of four shortlisted candidates.
Maya would be the first female deputy chief justice if appointed to the post. After deliberations, the JSC took a majority decision to recommend that she be appointed. It did not reveal how many commissioners disagreed with the recommendation but reliable sources put the number at three.
– This story was updated to reflect the outcome of the JSC’s deliberations and Maya’s call on reconsideration applications.
[/membership]