DA recommends Judge Maya for Concourt vacancy

Last week Monday I submitted a response to President Zuma's request for my input on the suitability of the four short listed candidates for the Constitutional Court vacancy, left by the retirement of former Chief Justice Sandile Ngcobo.

In terms of the Constitution, the President must, "as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly" make an appointment to the Constitutional Court. 

While the Constitution provides for proper and meaningful consultation, this has not happened in the past. Instead, the President has until now undertaken nothing more than a box ticking exercise. The DA objected to this charade, and made proposals for meaningful consultation with leaders of opposition parties.

The President has responded positively to two of our suggestions. This time, he sent the full short list of candidates for comment (not just the name of his preferred candidate) and allowed 12 days for the consultation process, rather than the customary 48 hours. We welcome these changes. 

However, for them to be meaningful, opposition parties must take their role in the consultation process seriously and make informed submissions relating to the nominees' suitability for the most important office in the land: the office of a Judge of the Constitutional Court. The buck of our democracy stops with them.

The DA takes its constitutional responsibility seriously. We have studied the curricula vitae, letters of nomination and past judgments of all four candidates. We have also carefully considered other factors crucial to the position of a Constitutional Court judge, including a deep understanding of constitutionalism, the ability to think independently, judicial integrity and ethics, and the aptitude to balance complex competing rights and competing interests.

All four nominees (Supreme Court of Appeal Judges Mandisa Maya, Robert Nugent and Ronnie Bosielo, as well as North Gauteng High Court Judge Raymond Zondo) are legally and technically qualified and have appropriate experience in presiding over our courts.

However, after taking into consideration all the factors required by a Constitutional Court judge, the DA has recommended Judge Maya to fill the position. We believe it is appropriate and in the public interest, that we are transparent about our recommendation and give reasons for it.

Judge Maya has extensive experience working in the South African legal system. She has worked as an assistant clerk, policy counsel, lobbyist, assistant law adviser, law lecturer, Independent Electoral Commission (IEC) investigator and as a practising advocate before becoming a High Court Judge and a Supreme Court of Appeal (SCA) judge in 2006. She has written 114 High Court judgments, 5 Labour Court judgments and 43 reported judgments in the SCA. She has also served as an acting Judge in the Constitutional Court.

A number of her judgments demonstrate her grasp of constitutional issues and the need to balance the enforcement of constitutional rights against the need for government to fulfil its mandate.

Judge Maya is also held in high esteem by the legal fraternity and civil society, has proven to be of independent mind, with a reputation for integrity and has shown she is not afraid to hand down dissenting judgements on a number of occasions. 

Judge Maya has demonstrated her commitment to protecting and advancing the rights and interests of women. She has taken a strong stance against gender-based violence. For example, during her tenure as a High Court judge she went against the tradition of giving lesser sentences to perpetrators of violent acts against their female family members. Her dissenting judgment in F v Minister of Safety and Security, which dealt with whether the state was liable for a rape committed by a police officer on "standby duty", was upheld by the Constitutional Court.

After a comparative analysis of the judicial records of all four short-listed judges, we submitted a detailed comparative motivation to the President arguing why Judge Maya possesses the qualifications, skills, experience, independence and impartiality needed to uphold, protect and interpret the Constitution. In addition, she contributes to the gender diversity of the bench, which is an important attribute, required by the Constitution. She would contribute to the "transformation" of the bench by adding value to its crucial role, as the lynchpin of our democracy.

We have noted with some concern, that some commentators have supported Judge Maya, primarily on the grounds that she is a black woman. Nothing could be more patronising to an outstanding candidate than suggesting that her suitability is merely based on ticking the correct gender and race boxes. Judge Maya is an excellent jurist, and this must be the primary criterion. 

Making "representivity" the overriding consideration for appointments to the Bench would risk relegating crucial attributes such as independence, open-mindedness, integrity and judicial record to the "second division". It is unnecessary to play these attributes off against each other - and Judge Maya demonstrates why.

The DA believes a diverse bench is essential in a complex plural society such as South Africa. Diversity is a vital component of the Judiciary's "fitness for purpose." But we remain deeply sceptical of the ANC's definition of "representivity" because we believe this is merely a fig-leaf behind which the ANC seeks to hide the deployment of its "cadres" to the Bench. Too many ANC heavy-weights want a Judiciary that will serve the party's interests rather than the Constitution.

How else can one interpret the accusation by ANC secretary-general Gwede Mantashe that Constitutional Courts judgments (including the one that found the disbanding of the Scorpions and the formation of the Hawks to be constitutionally invalid) show that the court is acting like an "opposition" to the ANC government? What's more, he has also accused judges of being "counter-revolutionary" forces working against the ANC.

Deputy Minister of Correctional Services Ngoako Ramatlhodi, has accused the courts of acting in a "counter-revolutionary" manner through judgments against government. In his attack on the Constitution last year, he described the separation of the powers between the executive, legislative and judicial arms of state as a "fatal" concession by the ANC during negotiations and claimed that it "emptied" the executive of power. This view is all too common within the ANC, and demonstrates a lack of understanding of Constitutionalism. It is all the more shocking when one considers that Ramatlhodi is a member of the Judicial Service Commission, the body that nominates judges for appointment.

Far too many people continue to accept, unquestioningly, the ANC's "transformation" narrative. The inevitable result of this smokescreen for "cadre deployment" will be the further empowerment of the governing party's ruling clique, and the subjugation of the people. In short, unless we challenge this narrative now, it will end in the failure of South Africa's transition to democracy.

Sincerely yours,

Helen Zille

This article by Helen Zille first appeared in SA Today, the weekly online newsletter of the leader of the Democratic Alliance.

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