OPINION: It would seem that at the moment, the only candidate that comes with little controversies, if any, is Judge President Mandisa Maya. She, undoubtedly, fulfils the requirements of what is expected from a judicial officer in South Africa, writes Professor Sipho Seepe.
The wall to wall coverage of the interviews for the position of Chief Justice of the Constitutional Court is to be expected. As the public face of the judiciary, the Chief Justice of the Constitutional Court occupies pride place in our body politic.
Beyond safeguarding the independence of the judiciary, a Chief Justice must exercise over the functioning of all the courts.
While many judges speak through their judgments, a chief justice enjoys the enviable position of speaking on behalf of the judiciary. His or her pronouncements would have the effect of shaping how the entire institution is regarded by ordinary citizens in the country.
Like their colleagues, Chief Justices come in various forms and shapes. Swollen headed judges suffer from delusions of grandeur and never miss an opportunity to lecture all and sundry about justice.
They behave as if they have a monopoly on what constitutes justice. In recent times, we have seen some confusing the notion of the supremacy of the Constitution to mean the supremacy of the Constitutional Court. Nothing could be further from the truth.
But judges are fallible. This much came from the submission of both Judge President of the Supreme Court of Appeal Mandisa Maya and the Constitutional Court judge Mbuyiseli Madlanga.
Madlanga went further to point out that the law does not always coincide with justice. His acknowledgement to this effect should put paid to the puerile debates that have sought to suggest otherwise. It was, therefore, heartening to hear that he has chosen to listen to that inner sense of justice whenever the law stands in a way of justice.
The JSC interviews are humbling. Candidates know this very well and know better to dispense with the judicial arrogance that they often display in the courtroom. Madlanga and Maya painted a sad picture of the reality facing judges of African descent. Beneath the pomposity often displayed in the courts lies the pain of being African. Their challenges are no different from that of ordinary citizens in so far as racial discrimination is concerned.
Both Madlanga and Maya painted a picture that is no different from a recent report by the Ministerial Task Team on the Recruitment, Retention and Progression of Black South African Academics (2019).
The Task Team found that “black and female academics experience overt and covert racism, sexism and patriarchy in universities” and “white and Indian males and females are still over-represented in university instructional and research staff, while African and coloured males and females remain under-represented.”
It came as no accident that the interviewing panel sought to establish the candidates’ credentials in so far as the issue of transformation and access to justice are concerned. The judiciary, just like every sector, is a microcosm of society. On the positive side, the mere act of awareness and articulation of the problem is a necessary step required to solve it.
Madlanga lived up to the expectation as a formidable thinker. He had a commanding intellectual presence. He used the opportunity to elaborate on the fact that law and justice are two different things. In an ideal situation, they would coincide. Justice was paramount in his approach to judicial adjudication of cases.
Unfortunately, he was floored when asked a simple question posed by the Speaker of the National Assembly Nosiviwe Mapisa-Nqakula on whether South Africa is ready for a female Chief Justice.
He proved to be unable to extricate his self-interest in the position of Chief Justice and many of the theoretical and progressive propositions that he had been credited for having advanced. This was a total embarrassment for someone who has been described as a champion of feminism.
Maya, like Mogoeng Mogoeng before her, used the opportunity to respond to her detractors. Her detractors argued that she lacks intellectual leadership, that she must remain Judge President of the Supreme Court of Appeal for the sake of stability and continuity, that appointing an outsider will be unwelcome by her colleagues into the Constitutional Court.
Maya dismissed the false dichotomy that seeks to separate one’s Intellectual prowess from administrative capabilities.
The two are not mutually exclusive. The lack of intellectual standing is inconsistent with the fact that her nomination to the position of chief justice enjoys the support of all the Deans of the Faculty of Law.
She has also been bestowed with three honorary doctoral degrees. And that despite a demanding schedule of having to relentlessly juggle administrative duties and co-function as a judge, she has handed down more than 200 reported judgments on a wide variety of legal subjects.
She is the only active judge to have broken a record of having two judgments reported consecutively in the South African Law report in one volume. Only one judge had achieved that before her.
The notion that she would be unwelcomed by her colleagues is also without substance. Not only does she get along with all her colleagues, but no less than five of the justices of the Constitutional Court served under her as a leader while they served in the Supreme Court of Appeal.
If anything, her appointment to Constitutional Court will be an advantage as it would bring fresh perspectives.
Having served in a high court and the Supreme Court of Appeal would help bring synergy between the apex courts and the rest of the judiciary. It is a matter of record that there is a lack of synergy between the superior courts and the other lower courts.
Commissioners seized the opportunity to quiz candidates on two topical issues. The first on whether it was advisable for members of the judiciary to embroil themselves in policy debates.
Some mischievously argued that in doing so, they would also be exercising their right to freedom of expression. The second issue relates to judges having to recuse themselves in situations in which they are seen as personally invested in a matter before them.
Madlanga and Maya were emphatic in their answers. They both argued that members of the judiciary would resist the temptation of getting embroiled in controversial societal debates.
On the issue of recusal, Maya was crystal clear. Prompted by Commissioner Julius Malema, she indicated that where there is a whiff or perception of bias or perception of conflict of interest, a seasoned judge would recuse himself or herself. This is exactly what Judge Colin Lamont did in a case involving a mining company in which he had shares.
For reasons that are inexplicable, the deputy Chief Justice Raymond Zondo failed to do so when he was politely asked by the former president Jacob Zuma to do so.
The argument that it was Zuma that appointed him in the first place is just nonsense. The minute Zondo entered into a dispute regarding matters of fact with a person appearing before him, he had become both a referee and a player in his own case.
Zondo’s decision to turn a personal squabble with Zuma into a constitutional crisis makes him unfit and has raised questions about his fitness to hold such a high office. Arguably, this ill-fated decision precipitated the biggest social unrest this country has seen since 1994. Over 300 lives were lost as a result.
Zondo is in an unenviable position. He is beholden to President Cyril Ramaphosa for his appointment to the coveted position at a time when he is concluding a report on State Capture.
His appointment could easily be seen as a reward for having written a report that seems to condemn individuals that are aligned to those opposed to Ramaphosa. Zondo’s independence in performing the judicial function will always be questioned.
Judge Dunstan Mlambo has been accused of singing different tunes in exactly the same matter that appeared before him. In a State Capture case that involved another Public Protector, Judge Mlambo wrote: "There is nothing in either the Public Protector's Act or the Ethics Act that prohibits the Public Protector from instructing another organ of state to conduct a further investigations". He changed tune when Busisiwe Mkhwebane advanced the same argument.
Mlambo would also have to respond to the allegation reportedly contained in the affidavit deposed by Arthur Fraser. The former spy boss argued that Ramaphosa was allegedly “engaged in an irregular process that manipulated the legal process of the Republic of South Africa” during a series of telephone calls between himself and Judge Mlambo. It would seem that at the moment, the only candidate that comes with little controversies, if any, is Judge President Mandisa Maya.
She, undoubtedly, fulfils the requirements of what is expected from a judicial officer in South Africa. These attributes range from character and integrity, legal accomplishment, knowledge of the law, community involvement, commitment to transformation, and most importantly, judicial temperament. She comes across as a judge that would be fair to parties that come before her. The Judicial Service Commission has made the task easier for Ramaphosa.
* Professor Sipho P Seepe is the Deputy Vice Chancellor (DVC) – Institutional Support, University of Zululand.
** The views expressed here are not necessarily those of IOL and Independent Media.
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