South Africa: Why Mandisa Maya has been recommended to be the 6th chief justice

By Farai Shawn Matiashe
Posted on Thursday, 10 February 2022 18:10

Justice Mandisa Maya
Justice Mandisa Maya (Nelson Mandela University site)

South Africa's President Cyril Ramaphosa has a tough choice on his hands to select a new chief justice of the constitutional court.

Will he go with the Judicial Service Commission’s (JSC) recommendation of Mandisa Maya? A well-qualified woman who could help him fend off criticism from the likes of tourism minister Lindiwe Sisulu, who took to the press to raise problems in the judiciary in January.

Or will he opt for Raymond Zondo, the acting chief justice and head of the commission that investigated ‘state capture’ under former president Jacob Zuma? Following the court’s hierarchy, Zondo would be next in line for the chief justice spot. Ramaphosa also wants Zondo’s help in crafting the government’s brief on the state capture investigations, which has to be delivered to parliament by June.

The JSC casts its vote

On 5 February, the JSC recommended supreme court of appeal (SCA) president Mandisa Maya as the country’s next chief justice. Though some people argue that Maya’s name has surfaced because she is a woman and appointing a woman could help Ramaphosa win political points, some analysts argue that the SCA president is the top pick because of her competence and merit.

Ramaphosa still has the final decision after further consultation with the JSC and political parties represented in the national assembly. If confirmed, Maya will make history as she will become the first woman to be the chief justice in South Africa.

South Africa’s constitutional court has been without a permanent chief justice since October last year when Mogoeng Mogoeng retired after completing his 10-year term. The JSC conducted its interviews for the position in early February.

Maya is competing for the role with three other candidates: deputy chief justice Zondo, constitutional court justice Mbuyiseli Madlanga and Gauteng judge president Dunstan Mlambo, after the four were nominated by Ramaphosa in November 2021.

About Maya

Maya, born in 1964, hails from Tsolo, a small town in OR Tambo, a district of Eastern Cape, South Africa.

I’m not good because I’m a woman. I’m just a good woman judge.

She made history in 2017 after becoming the first woman to be the president of the SCA, following her appointment by then president Jacob Zuma.

In 2021, she also became the first female chancellor of the University of Mpumalanga.

Recommended because she is a woman or on merit?

Despite that Maya lacks constitutional court experience like her counterparts Madlanga and Zondo, the SCA judge has long experience in judiciary.

During her interviews with the JSC, she denied malicious and sexist suggestions that she was riding on a woman ticket to reach the top judiciary post.

“I’m not good because I’m a woman. I’m just a good woman judge,” she said during the interviews.

Theo Neethling, a professor in the department of political studies at the University of the Free State, Maya she was nominated on the basis of the fact that she is currently the leader of the SCA.

“She has been in the spotlight as the first woman to be interviewed at this level – nominations for new chief justice. So, from this point of view, there would be a focus on her as a woman,” he tells The Africa Report.

Women in robes

In 2017, a mere 32% of judges on superior courts – which include the High Court, supreme court of appeal and the constitutional court – were women, according to the Democratic, Governance and Rights Unit of the University of Cape Town.

Neethling says: “She is competent and a strong and prominent leader in our judiciary. It is actually a pity that some questions from some members of the JSC to her as a woman were sexist as the focus should have been on her leadership and not so much on the fact that she is a woman,” he says.

Tessa Dooms, a political analyst, says Maya deserved the recommendation: “In her interview, she was competent. She is currently holding a senior position in the judiciary, one of the highest-ranking in the country,” she says.

Chief justice is a critical role because the constitutional court makes critical rulings that impact South Africa’s democracy.

Even though the South African constitution outlines the procedure for the appointment of judges, over the years there have been politicians and political parties who were disgruntled that the appointment of judges has not been done democratically.

To counter this, Ramaphosa followed the constitutional route, which allows South Africans to nominate individuals so that they can be shortlisted, interviewed and then recommended to the President.

Ramaphosa has the final call

Jo-Ansie van Wyk, a professor in the department of political sciences at the University of South Africa, says Maya emerged as a strong candidate not only because she is a woman but she has considerable experience and is a senior in judicial circles.

She has more than 179 judgments to her credit. She has also written judgements which her peers concurred with and is on record for minority rulings.

“All over the world, the law, legal and judicial sector remains predominantly masculine and male dominated. South Africa is no exception and, yes, we want more female judges. Not because they are women, but because they are good. Justice Maya has considerable experience and is relatively young and thus can do some good work,” she says.

Van Wyk says: “She has more than 179 judgments to her credit. She has also written judgements which her peers concurred with and is on record for minority rulings. She has also ruled in sensitive cases on customary law. Only two of her judgements were overturned on appeal,” she says.

It is not yet clear if Maya’s dreams to be the country’s chief justice will come true, as Ramaphosa could instead appoint Zondo or Madlanga or Mlambo.

But Neethling is confident that Ramaphosa will choose Maya. “I do not think he will go against or beyond the recent recommendation of the JSC,” he concludes.

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