What makes Mandisa Maya sleep better at night

Judging is a “very difficult exercise”, says Mandisa Maya, who will be the chief justice of South Africa in a month’s time. “You are determining a human being’s fate. And some of the decisions we make have the capacity to destroy a person’s life.”

Since the announcement of Maya’s appointment as the country’s first woman chief justice, a fact about her that has been often repeated is that more than 200 of her judgments have been reported. “It’s actually more like 300,” she says.

Though Maya did not often sit in cases that garnered media attention, many of her judgments were quietly precedent-setting, such as the Krok decision on double taxation, which received international acclaim, and the AfriForum case on the language policy at Unisa. Though it is more famous for being the first appeal court judgment to have been delivered in isiXhosa, it was an important judgment on its merits.

But when she is asked whether she is “proud” of any of her judgments, she appears uncomfortable with the idea. She says the intellectual side of judgment writing is “very important. But it doesn’t touch the core of me”.

“I can say that those [judgments] that made me sleep better at night were those that had a human element,” she says. She gives as an example a murder or rape case where the accused had been terrorising a community. “And when you hand down your judgment, you can see from the faces in the gallery that, my goodness, those people, they look like they feel they have received some justice. I find that most gratifying.”

One doesn’t become the chief justice simply by being a nice person. It requires intellectual heft, unimpeachable judicial integrity and independence, a steely backbone, and some political savvy. But human beings — those who use the courts and people its benches — seem to be what drives Maya primarily.

It was partly because of the human element that Maya allowed Dali Mpofu SC to speak beyond his allocated time in the recent Constitutional Court hearing on whether former president Jacob Zuma could be an MP. Rules are there to assist the court. But all counsel and litigants must feel they have been heard, she says.

“When I see Mr Mpofu standing there, and his client sitting in the gallery, what’s in my mind is not that this is Mr Zuma’s case. It’s just another case. I treat Mr Mpofu precisely the same way as I treat any other counsel who brings a bad case: we have to bear with them.”

“It is the human being in me. I like to give people a fair chance. I will give people a hearing.”

Maya has been based at the Concourt in Johannesburg since she was appointed deputy chief justice in 2022. But she still has a home in Bloemfontein, where she worked for 17 years at the Supreme Court of Appeal (SCA) and was appointed its president in 2017.

When I see Mr Mpofu standing there, and his client sitting in the gallery, what’s in my mind is not that this is Mr Zuma’s case. It’s just another case. I treat Mr Mpofu precisely the same way as I treat any other counsel who brings a bad case: we have to bear with them

She is there this week, with her dogs and hens, before returning to Johannesburg for a week of court hearings. Then she will go straight on to Durban for a conference of women judges. As we walk through the corridors of the SCA after our interview, we stop for her to greet and catch up with every staff member we come across.

We make a detour for her to say hello to her former secretary. The detour takes us to the old section of the court building and past the chambers of Justice Nolwazi Mabindla-Boqwana, who jumps out of her chair to greet “sis Mandi”. The two stand and chat — in a long, elegant corridor whose walls are lined with photographs of the court’s former judges.

The images seem to go on endlessly, and every one of them (in this part of the building, at least) is of a white man. It is only right at the far end of the corridor that the photo of Leonora van den Heever appears — the first woman judge of the SCA, appointed in 1991.

Earlier, Maya said she did not want to diminish the significance of being appointed the first woman chief justice of South Africa. But “the biggest moment for me” was her appointment as the leader of the SCA — “because of the history of the [SCA], which used to be the pinnacle of everything that is legal in South Africa”.

The Concourt was the court of the new South Africa — deliberately created to be a break with the judiciary’s apartheid past. But the SCA had a more difficult journey to transcend its past — trying to keep the best of its traditions while shedding those that undermined its legitimacy. Black and women judges who came to the SCA had to contend with talk of “this transformation drivel — what its proponents overlook is that you can’t fast-track experience”.

In 2017, Maya took the unprecedented step of laying bare some of the tensions at the SCA before the JSC, saying it was not until that year, after a diversity workshop, that black and white justices sat next to each other in the tea room. As leader of the court, she drove a team-building process there that was praised in subsequent JSC interviews.

Maya and Mabindla-Boqwana are at ease, laughing and chatting in that corridor. But it was not always so. Long corridors are a feature of many court buildings — including the Western Cape High Court, where a much younger Maya acted for a term in 1999.

“There was a judge — I will never forget this — and if we were walking towards each other in one of those long corridors, he would turn back rather than come and pass me,” she says.

But there were other judges who were very good to her in the Cape court, she says. There was judge president Edwin King, who invited her to act, the late judge Dennis van Reenen, who helped her with the first application she had for her recusal (“You’ll do no such thing. You go and tell those counsel there is no basis for that application”), and former deputy judge president Jeanette Traverso, “who did not suffer fools gladly, but who is a very kind human being”.

Traverso saw Maya was “no fool, [and that] I clearly had potential”. She told Maya she would help her write a reportable judgment — “and she did exactly that”. In a single term as an acting judge, “I walked away with two reported judgments in the South African Law Reports because of her teachings”, says Maya.

There was also the former judge president, now impeached, John Hlophe. “He really played the role of a big brother to me. Because it was tough. It was difficult to be in that court. So he took it upon himself to pop into my chambers every day, just to reassure me that I was good enough and had every right to be in that court. [He said I should] just apply myself and let my work speak for itself.”

This was “part of our journey together — why we had this relationship that seems to bother so many people”, she said. Maya is referring to negative public commentary when she recused herself from the JSC’s decision on whether to find Hlophe guilty of gross misconduct.

In her 25 years on the bench, it was only in Hlophe’s matters that she recused herself, she says.

Until she was nominated to be chief justice in 2022 — alongside incumbent Raymond Zondo, Concourt Justice Mbuyiseli Madlanga and Gauteng Deputy Judge President Dunstan Mlambo — Maya had never been a figure of any controversy in the legal community. But that race for chief justice was a bruising one — for all involved. As late as this week, Zondo and Madlanga released a public statement to “set the record straight” and confirm that there had never been tension between them.

In the run-up to the CJ interviews, and also in their aftermath, Maya too became a target. She was criticised for her relationship with Hlophe. There was a report by amaBhungane, based on anonymous sources, that she had repeated, ahead of the interviews, unsubstantiated allegations of sexual harassment against Mlambo. “All I want to say about that is that Judge President Mlambo and I share a very collegial relationship, and I think the concern for both of us is the welfare of the judiciary. I have no time for gossip.”

As both are leaders of the judiciary, “we have to work closely together”, she said.

There is a lot of work to do. Maya does not go into detail about her plans — there is still a month before she becomes chief justice. But she is taking on the role at an unenviable time.

Just this week, it was reported that civil trial dates in the Gauteng High Court were being allocated for 2029 — nearly five years from now. Part of the problem is an acute shortage of judges. The crippling workload at the Concourt has also been widely reported in recent years. At the SCA, there has been a rapid outflow of judicial experience — owing to retirements and elevations to the apex court. In the face of all this, the recent budget allocation for the judiciary has dismayed commentators as woefully insufficient.

There are different challenges at different courts, Maya says. But to address them, the most pressing issue is the full institutional independence of the judiciary, “because that will allow us the space to be able to determine the real challenges [and] our needs, and decide for ourselves how to address those”.

About the budget, Maya says: “I don’t know how we are going to carry on doing what we have been doing, let alone implement the improvements that are so direly needed.” There has to be a conversation with the executive about these budget cuts, she says.