Chief Justice Mandisa Maya. (Gallo Images / The Times / Simphiwe Nkwali)
ANALYSIS
When Chief Justice Mandisa Maya took office earlier this month there was no doubt that, like her predecessors, she would have to navigate the rough terrain where law and politics intersect.
The uMkhonto weSizwe (MK) party served her with an immediate reminder of this reality this week.
In a letter of demand dispatched on Monday, it asked that Maya, as head of the Judicial Service Commission (JSC), postpone next week’s interviews to fill vacancies at the supreme court of appeal (SCA) and the high courts pending the final resolution of the litigation regarding the appointment to the commission of the party’s parliamentary leader, John Hlophe.
The Western Cape high court, the division Hlophe headed prior to his impeachment, on Friday granted an urgent interdict barring him from participating in these or any other interviews until the question of whether his appointment was irrational and unlawful was settled.
In the letter to Maya, MK party chief whip Mzwanele Manyi argued that in Hlophe’s absence the commission will not be quorate and therefore any appointments that flow from the interviews will be unlawful. The high court in its ruling last week took a different view on this point.
But the party said the only way for the JSC to avoid this “constitutional crisis” regarding judicial appointments and “unnecessary and expensive urgent/and or complex litigation” would be to postpone the sitting.
The answer from the JSC was a firm no.
In a statement, the commission said it met on Monday and reached the decision by majority vote.
It said it did so “for the reason that the JSC is properly constituted because the court did not set aside the decision of the National Assembly to designate commissioner Dr Hlophe to the JSC and he therefore remains a duly designated member of the JSC”.
The JSC further noted that the judgment made plain that “the JSC will be able to conduct its business whilst commissioner Dr Hlophe remains under the interdict order”. The MK party and Hlophe’s plans to appeal the ruling did not impede the commission from proceeding with the interviews, it added.
The decision was never going to go the other way, and no court is going to indulge the party that’s Hlophe’s new political home with an urgent interdict barring the JSC from proceeding with its work next week.
To obtain interim relief, an applicant must prove that the balance of convenience leans in his or her favour.
In this instance, the court would weigh the implications for Hlophe against those for the commission, its 25 other members and the 50 candidates it is scheduled to interview next week. It would also consider the cost already incurred in booking a hotel venue for the sitting.
The high court had already touched on this in its ruling on Friday.
In weighing the balance of convenience for interim relief sought by the Democratic Alliance and Corruption Watch, the court said “this is one of the clearest of cases to grant a restraining order”.
Hlophe will not be prevented from carrying out his work as an MP, a full bench said.
“He may miss one or perhaps two sittings of the JSC prior to the hearing of part B of the applications.”
Economic Freedom Fighters leader Julius Malema is said to be highly disgruntled at Maya’s decision.
The commission and the rest of the country have repeatedly seen how disruptive Malema can prove in interviews when he holds a political grudge or seeks a particular outcome.
This was memorably the case when the JSC interviewed four candidates for the vacancy of chief justice in 2022. Malema favoured Maya, and set out to ambush and discredit both then deputy chief justice Raymond Zondo and the Gauteng judge president, Dunstan Mlambo.
The JSC recommended that President Cyril Ramaphosa appoint Maya. He chose Zondo instead, but named Maya deputy chief justice, paving the way for her to succeed Zondo in September and become the first woman to lead the South African judiciary.
Political and legal observers commented at the time that Malema would turn on Maya the moment she frustrated his aims. Monday will tell whether that prediction holds true. If it does, the new chief justice may have her hands full in maintaining order and decorum at the first round of interviews she will chair as head of the JSC.
Malema aside, there is the small matter of most of the political designates to the JSC never having served on the commission because parliament had to name new representatives after the May general elections.
Judges Matter has noted that the same week will see the Judicial Conduct Tribunal commence hearings in the sexual harassment charges against Selby Mbenenge, the judge president of the Eastern Cape. It is the first time that the tribunal has to deal with charges of this nature against a senior member of the profession.
“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,” Judges Matter research officer Mbekezeli Benjamin wrote recently.
The chief justice’s role carries obligations well beyond the steering of the JSC.
Maya has taken office at a moment when morale in the ranks of the judiciary has been sapped by serious, unresolved issues, among them the poor state of the country’s courts and the shortage of judges, magistrates and support staff.
The courts have had to contend with a staff-freeze which means, as Maya told the JSC in her interview for the job of chief justice in May, that the appellate court has only three researchers for 27 judges.
“It is a miracle that that court is still able to perform as well as it does with such constraints,” she said, before telling the commission that being able to appoint more judges, administrative clerks and researchers would be at the top of her list of priorities.
The shortages are the consequence of a series of budget cuts and carry implications for the delivery of justice. New high courts have been established in Limpopo and Mpumalanga and while this was an overdue step to enhance access to justice in those provinces, the reality is that judges were drawn from other divisions to serve these.
It is no secret that Maya believes the answer to diminishing budgets and bottlenecks at courts lies at least in part in granting the judiciary full institutional independence. It would mean 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.
When she expressed this view in her interview in May, then justice minister Ronald Lamola expressed reservations, asking how the executive would be able to continue helping the judiciary in facilitating access to justice if this happened.
Maya shot back: “I am not sure why the executive would not be able to assist if help was needed, Minister.”
Lamola then questioned her on the ideological implications of the judiciary accounting to the legislature, adding that it would moreover add to the already heavy administrative burden carried by the chief justice.
Maya said she did not see any obstacle, prompting Zondo 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.
She conceded that perhaps this function should fall to the secretary general of the office of the chief justice, who interacts with parliament.
Benjamin stressed that for now, any reform in this regard remains hypothetical and the chief justice needs the support of the minister and the portfolio committee in parliament to secure larger budget allocations. She would also need political support to motivate for changing the status quo and moving administrative oversight away from the department.
But current Justice Minister Thembi Simelane faces a legitimacy crisis because Ramaphosa is considering firing her amid ongoing revelations about the dubious loan she accepted from a middleman in the VBS Mutual Bank scandal. Although the president faces mounting pressure to come to a decision soon, his office has pleaded for time and not excluded the possibility of him consulting the ANC.
In the meanwhile, Maya wasted no time in convening her first meeting of heads of courts, a crucial forum where the leaders of all divisions discuss the challenges facing the judiciary. The meeting happened last Friday and is said to have gone well.
It is an early indication that her long experience as a leader in the judiciary will stand her in good stead as chief justice.
She has been on the bench for 24 years, seven of which were spent at the appellate court. She served as president of the SCA from 2017 to 2022 and earned credit for confronting what was described as a regressive old boys culture at the court and bringing in more black and female judges. Under her leadership, the court both managed swift transformation and retained its reputation as the country’s best-performing court.
She is regarded as a solid judge and describes herself as a conservative one. It is widely considered that her administrative skill and the pressure to name a female judge to lead the institution were strong motivating factors for her appointment.
The constitutional court has been snowed under applications since its jurisdiction was expanded to make it the court of final instance on all matters. It hears about 40 cases a year, but receives close to 400 applications annually.
Maya has supported a call by Zondo to allow a panel of senior lawyers or retired judges to assist the court in weighing applications. But she ventured further that the Constitution should be changed to increase the number of judges on the apex court by four to 15 to handle the workload. Again any change would not happen soon, or without some resistance.
Democratic Alliance justice spokesperson Glynnis Breytenbach, also a member of the JSC, said she would like to see Maya include improving court infrastructure, reducing the shortage of judges and addressing the problem of short court hours in her priorities.
Jean Redpath, a senior researcher at the Africa Criminal Justice Reform project at the Dullah Omar Institute, raised enforcing respect for the norms and standards of the courts, which includes hours kept.
Redpath noted that in terms of s165(6) of the Constitution, the chief justice exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.
“Current norms and standards are honoured more in the breach than in the reality. For example, the norm that courts should sit for 4.5 hours per day, that civil cases be resolved within one year from summons in the high court and nine months in the magistrate’s court, criminal cases within six months of plea etc, etc,” she said.
“Research should establish exactly what the current reality is, and set norms and standards accordingly, to be monitored more closely than is currently the case. Much more attention should be paid in the norms and standards to ensuring efficient sitting schedules rather than leaving it open to the head of court as is currently the case.”
Whatever Maya does, or does not do, will be consequential by virtue of the length of her tenure alone. She will serve as chief justice until early 2034, when she is due to retire at the age of 70.