Is Mandisa Maya really the best person for the top legal job? Not from what I’ve seen
The Judicial Service Commission (JSC) wasted no time in recommending Mandisa Maya as head of our apex court. She was a shoo-in, or what Americans would call a slam dunk. That SA was going to get its first female chief justice seemed an open and shut case.
Two months down the line, we’re still waiting for a decision. President Cyril Ramaphosa’s seeming lack of urgency in dealing with such important matters can be maddening, and frankly irresponsible. There seems no plausible reason why the public should be kept waiting for so long. Apart from the fact that the judiciary has been left leaderless, it’s also unfair on the candidates after their unpleasant encounter with what can only be described as a kangaroo court.
Our do-nothing president knew aeons ago that Mogoeng Mogoeng was retiring last October. Yet he did nothing about it until the chair was vacant. And when he finally snapped out of his stupor, he didn’t produce a preferred candidate but instead asked the public for suggestions. Then he appointed a task team to compile a shortlist for JSC interviews, which unfortunately descended into an ugly, grotesque spectacle. That was no way to treat judges who, in democratic societies, are keepers of the faith.
Ramaphosa may have blindsided the JSC by making four candidates available for interviews. The commission thought it was its duty to pick one for him, which it duly did. Mindful of the fact that Ramaphosa is a consummate ditherer, the JSC may have taken it upon itself to ram Maya’s name down the presidential throat, thinking it was doing him a favour. All he had to do was rubber-stamp its decision. But even that has proved a tall order for the president. The fact that he’s taking forever to decide may mean that he has his doubts about appointing Maya, and is probably terrified of swimming against the tide.
Everybody seems to have been so caught up in the excitement of the possibility of the first female chief justice that important questions were never asked. Is Maya the best candidate? I don’t think so. Not from what I’ve seen.
I think she’s been ill-served by her noisy supporters, who thought the best way to help her get the job was to pepper her with softball non-legal questions while tearing down her rivals. She was patronised by the very people who thought they were protecting and promoting her. As a result very little was learnt of her philosophy or jurisprudence. The giddy possibility of a woman at the helm of our judiciary simply took over.
Even the other candidates were almost coerced into saying something in her favour. Julius Malema, one of her more obnoxious supporters, kept asking the other candidates: don’t you think after 27 years of democracy it’s time we had a woman as chief justice? It was a trick question, for to answer in the affirmative was tantamount to disqualifying themselves, and by saying nay they ran the risk of being pilloried as unvarnished chauvinists. The other candidates, meanwhile, were treated like criminals or the accused in a trial.
But of course the worst culprit was Dali Mpofu, a politician masquerading as a lawyer, who lobbed what he must have thought was the coup de grâce — unfounded rumours of sexual harassment concerning Gauteng judge president Dunstan Mlambo. It was an act of desperation. It’s not as if these people are feminists or believe in gender equality. Malema famously said Jacob Zuma’s rape accuser had enjoyed the experience and even stayed over to ask for a taxi fare. Mpofu was making sexist jokes even as he was posing questions to Maya.
Maya obviously cannot be held responsible for how she or her rivals were treated during the interviews. But it’s worth asking the question: why are the JSC members so keen on her? Some of them seem to have a bone to pick with the law. Malema spends more time in the dock these days than on a political podium. Do they think Maya would be a chief justice more to their liking, in the way that they’ve used public protector Busisiwe Mkhwebane? A lot of people knew Mkhwebane was not fit for the job, but they were either afraid to voice an opinion or they fell for the ruse that she’d learn on the job. That didn’t turn out very well.
It’s probably unfair to Maya to mention her and Mkhwebane in the same breath. Maya is smarter and has a firmer grasp of the law. But many of those lining up behind her may be hoping she’ll be malleable — though of course the Constitutional Court is a more collegial environment than the one-man show that is the public protector. Also worrying is the fact that Maya referred to Western Cape judge president John Hlophe as “a big brother”. That’s a red flag. Hlophe is a delinquent who should have been removed long ago. A chief justice who has a soft spot for such characters should be a no-no.
Ramaphosa is not obliged to appoint Maya. Despite the despicable canard perpetrated against him, Mlambo seems the most accomplished of the candidates, with a well-thought-out plan on how to fix the judiciary. He’s the no-nonsense chief justice that SA needs at this time. He should get the job. Alternatively, give it to deputy chief justice Raymond Zondo, who has only two or three years left on the bench. Let it be his swansong. Mlambo, as his deputy, can take over when he retires.
Corruption will probably be the most important issue the judiciary will have to deal with in the coming years. And Zondo knows more or less where the bodies are buried.