Chief Justice Mandisa Maya. (Gallo Images / The Times / Simphiwe Nkwali)
Deputy chief justice Mandida Maya on Tuesday said she was in favour of increasing the number of judges on the constitutional court by four and amending the Constitution to allow panels to sift applications to the court to ease its workflow.
Maya told the Judicial Service Commission (JSC) that “if I had my way”, the court’s complement would be increased to 15, given the number of cases it had had to hear since its jurisdiction was expanded more than a decade ago.
She was setting out her vision for the court and the judiciary if she were to be appointed as chief justice later this year when Chief Justice Raymond Zondo retires. President Cyril Ramaphosa nominated Maya to replace Zondo and she was interviewed by the commission to allow it to advise him on her suitability.
Although the interview is a requisite part of the consultative process in appointing a chief justice, the advice is non-binding.
Maya, the former president of the appellate court, told the JSC she had never worked as hard as she had since joining the apex court in 2022 and recalled recently quipping to Zondo that there was “nothing attractive about your job”.
“I don’t want it. It is too hard,” she added.
Although this was said in jest, she stressed how onerous it was for a court that sits en banc to hear about 40 cases, and weigh close to 400 applications, a year.
Earlier this year, Zondo proposed that either the court be allowed to use experienced lawyers, in addition to law clerks, to help to prepare memoranda on new applications to the court, or that section 167(2) of the Constitution be amended to allow judges to sit in panels when processing new applications.
If new applications could be considered by panels of three judges, it would mean a two-thirds reduction in the amount of time each member of the court spent in this manner, and would allow them to focus on their chief function.
“Time spent weeding out unmeritorious new applications is time taken away from that core function and so it is time that is spent at a serious cost to the South African legal system,” Zondo said.
Maya supported both proposals. She said there was ample international precedent, in Canada, Finland, Croatia and other countries, of having senior lawyers or retired judges assist the highest courts in weighing new applications.
“These measures allow the apex court to have, in addition to law clerks, panels of experienced judges or experienced senior lawyers who assist with the sifting of the matters that are placed before the justices, and the preparation of opinions on those matters, so that the judges do not drown in ceaseless applications for leave to appeal, some which have no merit at all,” she said.
“This would free up precious time for the judges to write judgments and hand them down quicker than they are,” she said, silently acknowledging complaints about the court’s delays in handing down rulings.
“But the long-term solution, which I understand [Justice] Minister [Ronald] Lamola’s department has accepted in principle, is the amendment of the Constitution, a process which must be started as soon as possible.”
The aim of the amendment would be to allow the adjudication of applications for leave to appeal to be heard by smaller panels of judges, Maya said.
But she added, going further than Zondo has in his proposals, that “even court hearings” could become the work of panels, as was the norm at the supreme court of appeal (SCA). Zondo had proposed that, while panels could decide whether there was merit in new applications, adjudication would still happen en banc.
She also again suggested holding post-hearing conferences at the constitutional court, to allow judges to reach clarity and accord on key issues sooner, as a way of speeding up the judgment process.
Maya said she would also “advocate for the appointment of more judges in the court, so that the work is spread wider among more judges”.
“As I understand it, the court can accommodate as many as 15 judges now and creating these extra positions would, in my view, fit with the idea of allowing smaller panels to adjudicate applications and appeals and ease the pressure.”
She said the amount of litigation had “exploded” across the superior courts while the number of judges had remained largely stagnant.
“Judges are struggling tremendously to get all their work done, at the risk of their health and well-being, and I dare say — because this is a hotly contested issue — when they are not even paid properly for their efforts.”
She added that budget cuts meant it was no longer possible to appoint acting judges to assist with the backlogs and mentioned that she had had a “tussle” with Lamola on the subject while she was at the SCA because the treasury had closed the taps.
More judges, more administrative staff and more researchers must be appointed to relieve the pressure, she said, adding that it was unacceptable that the SCA had only three researchers among 27 judges.
“It is a miracle that that court is still able to perform as well as it does with such constraints.”
In setting out a list of priorities plainly informed by these frustrations, Maya said foremost would be to advocate for full institutional independence for the judiciary, meaning that it would have its own budget, instead of relying on the justice ministry, and would report to parliament on how the funds were spent.
She said although this would not be finalised overnight, immediate consultations between the executive and the judiciary on the subject were indicated.
“Urgent policy and legislative steps must be taken and I would advocate for those,” she said.
This drew questions from commissioners as to the constitutional implications and whether it would disturb the separation of powers if the judiciary were to report to the legislature. Lamola was the first to raise concerns.
“How do you envisage the executive continuing to facilitate access to justice in judicial-led court administration?” he asked.
Maya replied: “I am not sure why the executive would not be able to assist if help was needed, minister.”
Following up, Lamola asked: “We account to parliament for the budget and so forth. How do you envision the judicial-led court administration accounting to parliament?”
Maya replied that, to her mind, “parliament is the cradle of our society” and that the judiciary should account to it in the same way that the executive does.
“I don’t see why the judiciary should do things differently.”
Lamola said this implied that the chief justice would go to the National Assembly and to the portfolio to account for the budget for the judiciary.
“Not necessarily the chief justice, the secretary general of the office of the chief justice will go to parliament,” Maya replied.
Lamola pointed out that in the case of other departments, that function fell to ministers, before agreeing that a different mechanism might be found for the judiciary.
“But I will leave that for further engagement in another platform,” he said, before suggesting that giving the judiciary full operational and financial independence would add to the administrative burden carried by the chief justice, noting that she had stressed how onerous it already was.
Zondo interceded to caution that it was not the norm in other countries, and not advisable, to see a chief justice report to the legislature and that this function was left to the equivalent of the chief official in the office of the chief justice.
“It is normally not taken as the right thing to do in terms of the independence of the judiciary,” he said, before asking Maya whether she would agree with this view.
Commissioner Sesi Baloyi said Maya’s initial response on the subject, and her apparent readiness to say the chief justice should account to the legislature, “at first blush it would raise concerns about your views about the breadth and the depth of the separation of powers” and asked her to clarify her position in this regard.
Baloyi added: “So that if there are any concerns about the Maya chief justice period being problematic when it comes to separation of power, that can be cleared.”
Maya said this concern seemingly arose only because there was a push for greater independence of the judiciary and had been absent prior to the creation of the office of the chief justice as a national department in 2010 to improve organisational governance of the institution.
“I am not sure why it would suddenly be a concern now that judges are actually their affairs themselves and they go and give an explanation there to the South African public when previously they were in the clutches of the executive.
“They were given everything by the executive, the executive literally ran their lives and the concern, which is the main thing that led to this proposal that we have this model, was that judges always have to go with cap in hand begging to the executive for this or that or the other, and sometimes they did not even have the opportunity to beg, they were just given and they had to take that.”
Maya is 60 which means that if she is appointed, which is all but assured, she will serve as chief justice just under 10 years, until March 2034. Like Zondo and before him, Mogoeng Mogoeng, she will lead a judiciary grappling with mounting tension between itself and the executive.
On Monday, the JSC recommended Gauteng high court judge David Unterhalter for appointment to the SCA, along with judges John Smith and Raylene Keightley, from the Eastern Cape and Gauteng divisions, respectively.
The JSC has interviewed Unterhalter four times in recent years for positions at the appellate court and the constitutional court. His candidacy was strongly opposed by a small, but vocal, group of commissioners, led by Economic Freedom Fighters leader Julius Malema.
Malema was absent on Monday and Unterhalter sagely stepped down from his earlier reluctance to offer an unequivocal apology for failing to recuse himself when an application for leave to appeal came to the constitutional court, where he was acting, after he had been part of a panel at the SCA that refused the applicants in the same case leave to appeal.