JUDGING THE JUDGES
Politics, sexism and slander mar chaotic JSC interviews
● The shambolic interviews held this week to assist President Cyril Ramaphosa decide on SA’s new chief justice may have been more of a hindrance than a help.
With the judiciary under unprecedented attack from political factions, the Judicial Service Commission (JSC) interviews, which started on Tuesday, at times degenerated into slanging matches, sexist comments, inappropriate questions and political grandstanding.
Constitutional Court judge Mbuyiseli Madlanga was the first to be interviewed, followed by Supreme Court of Appeal president Mandisa Maya, Gauteng judge president Dunstan Mlambo and acting chief justice Raymond Zondo.
Last night, the JSC said after much deliberation, it came to the decision to recommend the president appoint Maya the next chief justice.
Both Madlanga and Zondo, if they were to be appointed chief justice, would have about three years before their terms as judges of the Constitutional Court expire. The constitution states that Constitutional Court judges hold office for a nonrenewable term of 12 years, or until they turn 70, whichever occurs first.
Mlambo would serve close to eight years until his retirement at 70, if appointed chief justice, and Maya could serve the full 12-year term.
Political analyst Ralph Mathekga said tensions surround the appointment but it would be difficult for Ramaphosa to avoid choosing the “natural successor”, Zondo.
“Zondo has experience and his role in the court is becoming clear,” Mathekga said. “While the president is spoilt for choice, he is also confined in a sense that he might have to explain why he would snub the deputy, who is so capable.”
He said Zondo’s role in the state capture commission meant he was seen by some leading figures as having brought them down.
For Ramaphosa, however, Zondo would be the person to appoint if he wanted to cement the idea that he was committed to the fight against corruption, Mathekga said.
Mbekezeli Benjamin, research and advocacy officer at Judges Matter, said Madlanga gave a “decent but not convincing performance” and did not provide enough detail on how he would lead the apex court.
He said although it had been nearly a decade since Maya last served as an acting judge in the Constitutional Court, she gave the impression she would do well as chief justice.
Benjamin said Mlambo’s weak point was on jurisprudence and court judgments. “It has been difficult to see the demonstration of his intellectual leadership in terms of the judgments he has written.”
Benjamin said Zondo seemed to be consumed by the state capture inquiry. “He’s been out of the judiciary and he doesn’t know where the judiciary is and where its priorities are. With the time period he has remaining, it would be difficult for him to figure out the solutions to the challenges in the judiciary.”
However, Benjamin said, the acting chief justice is smart and “has demonstrated this in the number of judgments he has written, the breadth of his knowledge and experience and his qualifications. He is also the most qualified of the three judges.”
Mlambo and Maya, according Benjamin, performed better than the other candidates because they had a compelling vision for the judiciary. “Their visions were grounded in practical reality.”
He said Maya was the favourite due to her vision and how she dealt with the questions she was asked, even though few were really probing.
“She was good in showing her leadership strengths. She had worked hard and focused on executing the vision she had for the SCA. She has intellectual leadership. She delivered judgments that were ground-breaking and she displayed an ability to deliver a judgment in an African language.”
Mlambo fared well despite his interview being tainted by questions about an alleged sexual harassment rumour, which he said was designed to poison his candidature. The chair of the panel, judge Xola Petse, later ruled that all references to the rumour be expunged from the record.
Cathy Powell, associate professor in public law at the University of Cape Town, said questions posed to Maya were patronising and showed prejudice.
She said Maya was excellent in her presentation, but when she was asked questions her performance was weaker. This was not her fault because she was asked unacceptable questions and put in a position that was “sexist and unacceptable”.
Powell said some commissioners treated Maya as if she was “fragile and sensitive”.
“That approach meant she could not show her skills; she was not properly grilled on judgments.”
The question by Northern Cape judge president Pule Tlaletsi on whether “South Africa is ready for a female chief justice” was disgusting, Powell said, and it was good that Maya described it as annoying.
“That is a question no woman should ever have to deal with, because the answer is, who cares? The question suggests that we all have to be sensitive and kind to people who might be uncomfortable with having a woman chief justice.”
The constitution provides that the president, after consulting the JSC and leaders of parties represented in the National Assembly, appoints the chief justice. This is what former president Jacob Zuma did when he nominated Mogoeng Mogoeng in 2011.
In September last year, Ramaphosa decided South Africans should take part, and invited the public to nominate candidates. A panel was appointed to shortlist between three and five candidates.
An Afrobarometer survey last year showed public trust in the judiciary has declined, and some politicians — notably tourism minister Lindiwe Sisulu — have attacked judges in recent months.