Supreme court of appeal (SCA) president Mandisa Maya on Wednesday said four notions that were considered to argue against her appointment as the next chief justice were hollow excuses.
One of these, Maya told the Judicial Service Commission (JSC), was that as someone renowned as a good administrator she perhaps did not match the intellectual prowess of the other candidates for the post.
“Those are not mutually exclusive qualities. I myself am proof of that,” she said.
“During my tenure at the SCA I have been awarded three honorary doctorates by three different universities and I was installed as chancellor of the fourth one.
“Almost all the South African deans of law formally nominated me to be chief justice of South Africa, despite a demanding schedule of juggling relentless administrative duties and my core function of sitting in court. […] I have managed to hand down upwards of 200 reported judgments on a wide range of legal subjects.”
She noted that there was a view that it was best to leave the SCA in her capable hands for now.
“I find it most patronising and even patriarchal maybe,” she commented, because there were other capable judges at the court, including five women.
“To my mind it implies that I lead a bunch of incompetents who would fall in a helpless heap if I left the SCA. […] Nothing could be further from the truth. [There is] no shortage of experience and skill and leadership quality there.”
She added that if she served out the rest of her time on the bench at the SCA, she would have led the court for 19 years and she did not believe that was healthy.
Maya said there were also concerns that it might cause discord and resentment among the constitutional court judges because the chief justice did not come from their ranks.
“I enjoy good relationships based on mutual respect with each of one those judges.
“I say this without fear of contradiction that Acting Chief Justice Raymond] Zondo and the rest of the constitutional court justices would support my leadership; I have no doubt.”
She said the fourth perception that counted against her was that it was a disadvantage that she lacked experience at the constitutional court. She said that rather, she viewed it as an advantage.
“What others describe as coming in from the cold, I see as bringing fresh perspectives and a wealth of experience. [My] time in the high court, my long years at the SCA and the almost seven years in the institution’s leadership has given me a holistic view of the entire institution and its challenges.”
There is a long-standing lack of synergy between the constitutional court “which sits up there” and the rest of the judiciary, she said, adding that there was also a disconnect between the high courts and the magistrate’s courts.
“We need a chief justice who is sensitive to this and has the ability to bring cohesion and unity to the institution so that all our courts can feed off and strengthen one another.”
She concluded: “So all four excuses have no substance in my view.”
Maya noted that the question as to whether the country was ready for the appointment of the first female head of the judiciary irritated many women.
“I’m not good because I’m a woman, I’m just a good woman judge,” she added.
Sitting constitutional court justice Mbuyiseli Madlanga, the perceived intellectual leader of the apex court, was the first candidate to be interviewed. It will be Gauteng Judge President Dunstan Mlambo’s turn on Thursday and Zondo’s on Friday.
Madlanga dealt with complaints about delays at the constitutional court in issuing judgments in his interview, and said he had made proposals to change court systems to ensure that judgments were handed down within a deadline of six months, in line with international standards.
He was named to the court in 2008, and explained that a practice of judges to conference immediately after a hearing was done away with for the sake of allowing each to reflect independently first.
Maya suggested if she were appointed she would reintroduce it because the current custom wastes time, and that she would import other work practices from the appellate court to the apex court to make it function more efficiently.
“It has great merit because it forces thorough preparation by the judges before the hearing and allows the sharing of views directly after the hearing while the debates are still fresh in the judges’ minds, and it can be determined quickly if there is going to be disagreement and the judges can start engaging meaningfully towards that direction and immediately start writing the competing judgments, all shortly after the hearing.”
Maya agreed, however, with Madlanga’s call to change the requirement for a court quorum from eight to an uneven number to prevent split rulings. If he leant perhaps towards making the figure nine, she said she thought seven would be sufficient.
She suggested there was also room to consider a further constitutional amendment to increase the number of judges at the constitutional court from 11 to 15.
“South Africans have become very litigious and there may soon come a time when the constitutional court needs capacity. It may be now.”
In the alternative, the SCA and the constitutional court could be collapsed into one, she said, “and that would remove a whole expensive layer in the appeal process and enhance access to justice”.
JSC commissioner Thandazani Madonsela picked up on this to quiz her about a common complaint that too many of the judgments of the SCA are overturned by the constitutional court.
She countered, firstly, that the same question could be put to Zondo, and secondly that she had been told the constitutional court rejected 95 percent of applications to appeal, hence those that were overturned presented “a tiny fraction” of the output of her court.
Still, she said, it left room for improvement.
“We are trying, commissioner, we are trying to get it right.”
She dismissed, also in reply to Madonsela, that she did not sit in enough important cases that came before the SCA.
Maya remarked early in her interview that it was a concern that surveys indicated a loss of popular trust in the courts.
“We all know that loss of confidence in the judiciary does not augur well for the rule of law and our democracy, and I think that this is something that needs the attention of the judiciary itself, to do an introspection and check if we are to blame for this change in attitude toward the institution.”
She added that the state organs enjoined to protect the judiciary must assist it in addressing the problem.