2 February 2022 

“I am not good because I am a woman, I am just a good woman judge,” Supreme Court of Appeal (SCA) president Mandisa Maya said of her nomination for the position of Chief Justice during her interview before the Judicial Services Commission on Wednesday.

She said if she were appointed she would be the “face of the judiciary”, with fresh perspectives and a wealth of experience to bring cohesion and unity among all the courts and those who preside over them.

It was not appropriate to ask if South Africa was ready for a woman Chief Justice because “it has always been ready”, she said. This drew a smattering of applause from some members of the commission.

Maya, who was first appointed as a judge when she was 36, has served on the SCA since 2006, taking on the leadership role in 2017. If appointed, she will become South Africa’s first woman chief justice, aged 58.

She took a practical approach in her interview, outlining what she had achieved at the SCA – boosting diversity and judgment turn-around times and debunking “patronising” talk that the SCA would collapse if she left.

She said any suggestion that the court would be destabilised implied that she led a “bunch of incompetents, which could not be further from the truth”.

On the issue that she was an “outsider” she said she had a good relationship with all the judges on the Constitutional Court, including two of her competitors for the top job, Judge Mbuyiseli Madlanga and Deputy Judge President Raymond Zondo.

She said her approach to the job would be pragmatic, underpinned by her key qualities of hard work, honesty and integrity.

Her leadership skills were proven, she said, and her ability on the bench was demonstrated by the fact that she had penned hundreds of judgments published in law reports, including one in written in both English and isiXhosa, a first in South Africa.

If appointed, her to-do list would include convening a meeting of all judges, who have not met under one roof since 2009, to share ideas, because the chief justice and heads of court “were not the bosses of anyone but the first among equals”.

Key issues for the judiciary

She said a key issue for discussion was the decline in public trust in the judiciary. “We need to get our act together and clean up,” she said.

The delay in the delivery of judgments she believes could be resolved through firm leadership and strict enforcement of case flow management.

She proposed shorter, more lucid judgments with less legalese.

She was in support of a constitutional amendment to change the requirement of a Constitutional Court quorum of a minimum of eight and a maximum of 13 judges, to avoid split decisions. But she also proposed that consideration be given to increasing the number of judges to 15, to allow for two courts to sit at the same time and increase output, and perhaps to collapse the SCA and Constitutional Court into one court “to remove a whole expensive layer and enhance access to justice”.

Maya said it was time that the Office of the Chief Justice (OCJ) became fully capacitated, and represented all judicial officers, including magistrates, and controlled its own budget.

“I would bring all our courts under one roof. We know that there are many serious challenges in the magistrates courts,” she said, citing the Palm Ridge magistrates court where there was no recording machine and no CCTV equipment for use by child rape victims, after an apparent bungle in the contract by the Department of Justice.

“This sector has asked to be linked to the judges under the OCJ so they can benefit and experience the judicial independence they are entitled to … They are judicial officers, not civil servants as they are now treated.”

The fact that financially the OCJ had its “hands tied behind its back” meant judges did not have any say at all how the budget was spent.

“We have expensive laptops which come with useless accessories which we never use. We are not consulted when they are procured … We are provided with leather-bound diaries. Who still uses those? And sacrifices are made in respect of critical support and tools of the trade, like court assessors, acting judges who help with backlogs, and the cancellation of subscriptions for law reports and law journals,” she said.

Sticking points

The Black Lawyers Association in its comment on her possible appointment, criticised her for appointing too many white men as acting judges.

“I refuse to accept that I am anti-transformation,” she shot back in response to a question on this. She said it was to enable a “transfer of skills” so that judges who had started as practitioners without an opportunity to gain experience in niche law could learn and grow.

“I must point out that it is not a sin to appoint white judges, whether acting or permanent,” she said. She said she should be judged on who was appointed, and not who was acting.

Another sticking point during her interview was her relationship with the embattled Cape Judge President John Hlophe. She had recused herself from a JSC disciplinary hearing against him and from hearing cases involving him in the SCA.

She explained that he was like a “big brother” to her and they knew each other from when they were starting out in their careers. When she was appointed to the Cape bench, there had been a lot of criticism around her appointment and he had supported her, she said.

Because of the “delicate issue of perception of bias” she avoided cases involving him. “There is nothing sinister,” she said.

Gender bias

On the issue of gender equality, Maya said the judiciary still did not have policies which accommodated women, including a sexual harrassment policy – “as if we live in this bubble and don’t experience these problems”.

“As a result of this, when a few courageous victims have reported, the matters have not received the attention they deserved and they were treated as acts of misconduct, which take forever to finalise.”

Also, she said, there were no maternity leave provisions “Yes, judges get pregnant,” she said. “I was the first and they did not know what to do with me. Eventually, I was advised that the minister would give me four months leave allowed under the Basic Conditions of Employment Act.”

Maya said she was a firm believer in a modernised, on-line court and hoped that this would give more people in South Africa better access to justice.

During the afternoon, Maya was reduced to tears by praise of her personal achievements and what they meant to women by ANC MP Sylvia Lucas. She apologised for her emotional response. “Don’t worry, we are all human,” Lucas said.

This article first appeared on GroundUp.