President Cyril Ramaphosa on Monday named supreme court of appeal (SCA) president Mandisa Maya as the new deputy chief justice with effect from 1 September. (Gallo Images / The Times / Simphiwe Nkwali)
During the vetting of the candidates for chief justice, the question was asked if South Africa is ready for a woman chief justice. Although the question is absurd, misogynistic and a confirmation of our patriarchal society, the answer is a resounding yes — and it is long overdue. And it will be a good decision when President Cyril Ramaphosa confirms Mandisa Maya as the next chief justice of South Africa.
Several narratives have attempted to zero in on the conduct of the vetting process by the Judicial Service Commission (JSC) and have pointed out that the line of questioning by some commissioners was inappropriate and that a number of commissioners behaved badly and in a self-serving manner, concluding that the process was a sham and that it will be contested in court.
The civility of the process has been called into question. Particular concerns were raised about the line of questions posed to two of the candidates. One such question was about sexual harassment and was posed to Judge Dunstan Mlambo. Perhaps if the question had been phrased as: “What are your views or experiences about gender-based violence in the workplace?” it would have been more palatable.
Another question, posed to Acting Chief Justice Raymond Zondo, was about his frequent meetings with Ramaphosa, suggesting that the frequency of such meetings compromise the judge’s independence. Another view was that no difficult questions were posed to the only woman candidate.
Already, actions, in the form of condemnation and even attempts at the removal of a commissioner, have become the preoccupation of professional legal bodies that are calling for heads to roll. Advocate Dali Mpofu is in the crosshair of these attempts. Pundits have written or indicated that the process is politicised, given the role of Economic Freedom Fighters leader Julius Malema. Lest we forget, the process is a form of politics, which is why politicians are involved.
None of this is new, quite frankly. Discussion about the judiciary appears to be beyond criticism. In the minds of some analysts, the judiciary is sacrosanct. The selection of a new chief justice has given renewed impetus to the view that the judiciary is under attack and needs to be protected. There are calls for the JSC to be reformed. Some commentators have claimed that those who “attack” the judiciary are not interested in justice or anti-corruption measures, but only in self-promotion, if not self-preservation.
The vetting process is said to be gruelling. Interviewees are “ambushed”. The process may even be traumatic and, therefore, “competent” jurists may not avail themselves to take part in the process in the future, while some have withdrawn although they are among the “finest legal minds”.
All these verbal entrapments are important to unpack so that we don’t mistake the trees for the forest. If we recall the vetting process that resulted in the selection of former chief justice Mogoeng Mogoeng, one can only conclude that the process is not necessarily a shoo-in.
The process then was analysed similarly. In a country in which there are myriad contestations in almost every aspect of life, this is not unexpected. The conduct of the panellists during the recent proceedings probably captures the state of flux in our country. It is clear that the conventions that prevail are a product of existing authority, an authority whose raison d’etre is beholden to and the derivative of a context that created them. We should not miss these nuances.
Meanwhile, we need to focus on the exigencies of the time we live in. In a patriarchal state, men know that they are in control and such control is being challenged. Any attempt to wrest control from men will be highly contested. Accordingly, each event that avails itself should be seized upon to dismantle patriarchy.
This is one such occasion. South Africa cannot continue as it is today. Leadership matters and people who exercise leadership do matter. The prevalent narrative that the process to select a new chief justice is “farcical”, or “illegal” should as well acknowledge that the end result may be good for our country.
In October 2021, the JSC interviewed seven short-listed candidates to fill two vacancies on the constitutional court. Five candidates were selected and recommended to the president to select two members to fill the vacancies on the courts; they included three men and two women. No woman was selected.
This time the president is given another opportunity to redeem himself and choose a woman. What is more, the proposed candidate is a qualified woman. She has the experience, not only locally but regionally. The decisions she has rendered in her stellar career as a jurist are established and unassailable. She embodies the new direction the country needs to embark on.
Let us not create the condition that burdens the process of ensuring that a competent, experienced woman becomes the new chief justice of South Africa. Symbolism matters and, in this particular case, it matters the most. South Africa must choose a woman to serve as the chief justice of our country. Simultaneously, the debate about our judiciary should be had and the reform of the JSC must continue.