For a moment in her interview for the post of deputy chief justice, supreme court of appeal (SCA) president Mandisa Maya seemed not to have read the report emanating from the investigation into a text message suggesting that a constitutional court decision on an application by the public protector had been leaked.
Maya referred to the incident as a scandal after she was asked about it at the Judicial Service Commission by Economic Freedom Fighters leader Julius Malema, who is a partisan of suspended public protector Busisiwe Mkhwebane and a proponent of the narrative that the judiciary, in particular the constitutional court, has been “captured” by political interests.
Malema put it to her that there was “a big problem” in that decisions of the Pretoria high court had been leaked and more recently one from the constitutional court. He framed his question as a criticism of Chief Justice Raymond Zondo, saying although there had been an investigation into the alleged leak from the apex court it was “not as transparent as to give confidence that this matter is receiving some attention”.
What, he asked, would she do to prevent a repeat.
Maya said she was shocked by the incident in which self-styled legal analyst Ismail Abramjee sent a message to legal counsel for Parliament that he had it “on very good authority” that the apex court had decided not to entertain a rescission application by Mkhwebane.
The message was sent two days before the high court was to hear an application by her for an interdict, opposed by Parliament, that was partly founded on the fact that the constitutional court decision was still pending.
“It is an extremely serious problem, commissioner Malema, that should just not happen. I think I speak for all judges, at least, when I say we were just shocked, especially by this last one affecting our apex court. I mean these things never happened in the past, It is a new phenomenon for us altogether,” Maya said.
Mkhwebane cried foul and said her own preliminary investigation showed 18 phone calls between Abramjee and the constitutional court judge, Justice Jody Kollapen, between January and April.
Zondo had said shortly after the SMS came to light that the matter would be investigated and the outcome of the investigation by former SCA president Lex Mpati was released on Friday afternoon.
It found, in short, that there was no leak as no agreement had been reached on Mkhwebane’s application by the time the message was sent, according to an affidavit deposed by Justice Mbuyiseli Madlanga.
Mpati noted that although Kollapen confirmed he had spoken to Abramjee about a function being organised to celebrate his appointment to the constitutional court, they had not discussed any confidential information.
But Maya compared the indigent to the leaking of a draft opinion of the US Supreme Court, which showed it ready to overturn the guarantee of abortion rights in Wade v Roe.
“I know that we should not take any comfort from the fact that it appears to afflict us only. Just around the same time that the constitutional court scandal erupted, a similar thing happened in the USA.
“At least there, there were dire consequences because the public came out, they would not stand for it,” she said.
She said South Africans presumably had so much to contend with that here the outcry was not of the same order.
“We were bothered but not all that much by this scandalous event. I’m not entirely sure what can be done to ensure that it does not happen, that the courts are not doing already,” she said.
“Because the only people who are involved in the preparation of judgements will be your judges themselves, the secretaries of whoever types the judgments, the law researchers, the law clerks, and there are prescripts, confidentiality comes with the job for judges, so we don’t need to say about that, but for the staff in the HR prescripts, there is something that binds them to confidentiality.”
She said this amounted to an oath staff took and if they were not going to consider themselves bound by it, it was hard to know what could be done to ameliorate the situation.
“I don’t want to speak about punitive measures because that does not really help the situation, we need to find something, a mechanism that is going to ensure that it does not happen in the first place, and right now sitting here I am not entirely sure what that is, commissioner Malema,” Maya said.
“I suppose it is yet another issue that we have to put our heads together as judges and debate and see how to deal with it, but it just should not happen, it is unacceptable.”
After she had completed her answer, Zondo pointed her to the findings of the investigation into the text message incident, which were released on Friday.
“For the record I just want to indicate that I asked the retired president of the supreme court of appeal, Justice Lex Mpati, to assist with the investigation. I told him that he must deal with it in whatever way he deems fit,” he said.
“His finding was that there was no evidence that there was anybody within the court who gave information to Mr Abramjee. The report was released to the public I think on Friday evening or Saturday evening. I just want to mention that. Thank you.”
Maya is the first woman to be nominated for the position of deputy chief justice. The Judicial Service Commission (JSC) after deliberations on Monday reached a majority decision to recommend that President Cyril Ramaphosa appoint her.
The JSC earlier this year recommended that Ramaphosa name Maya as chief justice, but he said it had exceeded its mandate by straying beyond advising him on the merits of four shortlisted candidates and appointed Zondo instead.
Asked on Monday how her vision for the administration of the constitutional court aligned with his, she said she believed they were not that far apart.
Questions about gender were not as prominent as they were in her interview in February when she was a candidate for chief justice, but asked about the recent appointment of three male judges to the apex court, she expressed disappointment.
She resisted a suggestion from Democratic Alliance MP Glynnis Breytenbach that recusing herself from the JSC when it had to decide whether to endorse the recommendation by the Judicial Conduct Tribunal that Western Cape judge president John Hlophe face impeachment for misconduct had shown a lack of will to discipline peers.
Maya said it was a fact that Hlophe had been a source of support for her in her career and at a difficult period in her life and had hosted her for dinner at his home. Recusal was indicated and had she sat on the matter, it would have created an unfortunate impression given their relationship.