In an historic step for SA's judiciary, Supreme Court of Appeal president Mandisa Maya was last night recommended as the country's first female chief justice.
The decision, after more than eight hours of deliberation by the Judicial Service Commission (JSC), was announced by JSC spokesperson Dali Mpofu, who said Maya was chosen by a majority vote.
The other candidates were Gauteng judge president Dunstan Mlambo, who came in second, followed by Constitutional Court justice Mbuyiseli Madlanga and then acting chief justice Raymond Zondo.
Mpofu noted that President Cyril Ramaphosa is “not bound by what the JSC or political parties recommend”.
The announcement follows threats of legal action over the JSC's shambolic interview process this week.
A commissioner, who asked not to be named, said: “Gender played a huge role in the JSC decision, including her leadership, people skills and administrative and management capacity.
“There was no question that all the candidates were qualified but Maya united the JSC because Mlambo was divisive politically.
“We felt that Zondo comes with baggage and is almost out anyway. Madlanga was a strong contender but the difficulty was why would the JSC miss an opportunity to recommend a woman who is as highly qualified as the men and had a better, convincing, clear vision for the office of the CJ?
“It was a tight race between her and Mlambo in terms of the strength of each candidate, and age is still on their side. But Maya was the clean candidate politically and it was not easy to argue against that.
“It didn't make sense to oppose her because she is as capable. Even for those who were pushing for other candidates, they couldn't substantiate why she should not be the one.”
Another commissioner said if Ramaphosa chose to ignore the JSC's recommendation, he would have to explain his reasons.
Before the announcement, some legal experts said the interviews did not provide a fair chance for the four shortlisted candidates.
Many in South Africa will want to applaud the possible appointment of our first female chief justice. But the recommendation of justice Maya as a result of a tainted, irrational, degraded process is no victory at all
— Helen Suzman Foundation executive director Nicole Fritz
Responding to the JSC's recommendation, Helen Suzman Foundation (HSF) executive director Nicole Fritz said: “Many in South Africa will want to applaud the possible appointment of our first female chief justice. But the recommendation of justice Maya as a result of a tainted, irrational, degraded process is no victory at all. Far from suggesting that women might take the helm of the judiciary on the basis of merit and their own intrinsic worth, it perversely suggests that that they can only do so as a result of a corrupted, debased process.”
Earlier yesterday, Fritz said the HSF was speaking to other NGOs about legal action to challenge the interviews after sexist questions were put to Maya, and Mlambo was asked about “rumours’’ — with no factual basis — of sexual harassment. Mlambo denied the rumours.
On Wednesday, Maya told the commission SA had always been ready to have a female chief justice and has had strong women capable of filling the post.
Ramaphosa broke with tradition by calling for a public nomination process, which resulted in an unusual number of candidates for the JSC to interview. Normally, the president nominates a single candidate, who is then interviewed by the JSC.
Fritz called the interviews an “abomination”.
“We’re currently considering the possibilities of a legal challenge and talking to others in civil society about such a challenge.”
Last year the foundation was among the parties that successfully approached the Gauteng High Court to overturn former president Jacob Zuma’s medical parole, and it has litigated against the JSC before.
Fritz said the interviews were “part of a process devised by the president to enhance his selection” of the chief justice.
Depending on what order is sought, and the approach the president takes to it, a court challenge could delay the naming of a new chief justice, a post that has been vacant since October last year when Mogoeng Mogoeng stepped down.
At the end of Friday’s proceedings, the chair, acting president of the Supreme Court of Appeal Xola Petse, read out a letter he received from professor Helen Kruuse of Rhodes University, who objected to the way the interviews were conducted.
Kruuse said: “I am particularly concerned with the sexist nature of questions posed to president Maya and the unsubstantiated sexual harassment questions posed to judge president Mlambo. While I believe the sexual harassment questions were expunged from the record, I believe the damage has already been done.”
She said the process should start afresh “with an admonishing that commissioners treat the candidates fairly, and/or implicated commissioners are to step down”.
What do you mean I am lying? Don’t say I am lying. That is disrespectful
— Julius Malema
She said if no such remedial action is taken, “the commission’s work could be set aside by a court of law on application by concerned parties”.
Lawson Naidoo, executive secretary of the Council for the Advancement of the South African constitution, said yesterday the organisation had not discussed going to court yet.
He said interviews by the JSC for chief justice are “part of the consultation process of the president. He is not bound by them.”
He said he does not believe holding new interviews would help.
“As I understand the nature of the process ... even if there have been flaws, rerunning the whole thing would not be likely to change anything,” he said.
There are deep divisions in the ANC and among other parties about who should be appointed as Mogoeng’s replacement.
Ramaphosa’s opponents and the EFF are said to prefer Maya. Some in Ramaphosa’s camp favour Zondo, but others, including justice minister Ronald Lamola, are believed to back Mlambo.
On Friday EFF leader Julius Malema sought to portray Lamola as having pushed for Mlambo to be an acting justice in the Constitutional Court in preparation for taking the chief justice position.
At the centre of Malema's complaint was the question of whether it was normal procedure for Lamola to have suggested to Zondo that Mlambo be an acting justice in the court.
Lamola rejected Malema's argument, accusing him of lying about the facts. “No, no, no, acting chairperson, that is a lie. It’s a blue lie what commissioner Malema is saying,” the minister said.
“No, but don’t say I am lying,” Malema retorted. “What do you mean I am lying? Don’t say I am lying. That is disrespectful. If you are going to allow him to say I am lying it’s wrong. I am on a platform here and I am not going to be called a liar.”
Lamola later withdrew the comment.
There were “robust” exchanges behind the scenes as well, including over the JSC's brief. Said an insider: “They spent some time discussing whether they should recommend a candidate or advise the president on the suitability of all the candidates. The discussions were quite robust.
“They were confused whether they are ranking the candidates or commenting on the suitability, where they would say ‘this one is appointable because, or this is not appointable because ...”
Mlambo previously battled what were said to be perceptions of bias in favour of Ramaphosa due to his rulings in some high-profile cases. Mlambo characterised the perception as “unfortunate and unfair”, adding that he valued his “independence, impartiality and open-mindedness”.
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