On Tuesday, the Judicial Service Commission (JSC) will interview deputy chief justice Mandisa Maya for the position of chief justice, which Raymond Zondo will vacate in August this year. Maya, President Cyril Ramaphosa’s sole nominee for the country’s top judicial office, was the favourite in February 2022 when four candidates were interviewed, an occasion that marked yet another low point for the JSC.
Indeed, Maya’s interview in 2022 was impressive, and she was considered a shoo-in after the JSC recommended her, until the president chose instead to appoint Zondo. Fair enough. As the only candidate for the position, her appointment appears to be a foregone conclusion, just as Mogoeng Mogoeng’s appointment was in 2011. She will now take the reins after having spent two years and counting as Zondo’s understudy, hopefully having now found her feet. She faces an unenviable task. The judiciary is beset by all manner of challenges, all of which she will have to tackle head on.
Most urgent is the finalisation of the decades-long process of granting the judiciary full institutional independence from the executive. Currently, the administration of the courts is a responsibility shared by the Office of the Chief Justice and the department of justice, with no clear delineation of functions and the risk of executive overreach.
The most immediate task, as the judges seem to have agreed at their conference in December, is to ensure that the administration of the courts is judiciary-led with full control over operational matters, accompanied by appropriate safeguards to ensure accountability for the use of state funds. This is a project that has outlasted three chief justices already and Maya must now bring it to fruition.
Equally important is the improvement of the Constitutional Court’s performance. As many commentators have noted, the court is simply not performing the way it should. Application processing times have almost doubled, and the number of judgments delivered per year has also steadily decreased. It is simply overburdened by the number of cases that come before it. Just recently Zondo attempted to bring former justices out of retirement to assist with easing this caseload but that was abandoned after an intervention by the Council for the Advancement of the South African Constitution (Casac) pointing out that the initiative was potentially unconstitutional.
Other solutions have since been proposed, including a constitutional amendment to allow the court to sit in panels when deciding applications for leave to appeal. There are several other options that will need to be explored, but Maya will have to steer them to completion.
The era of taking 16 years to finalise a misconduct complaint must now become a distant memory
Another institution that needs urgent attention is the JSC itself. In both its appointments and disciplinary roles, it has not covered itself in glory. Too many of the JSC’s processes remain shrouded in secrecy. How does it shortlist candidates? Who are the members of the subcommittee responsible for shortlisting? Transparency will have to be the starting point. Without information, it is impossible to hold the JSC to account. Then there is the small matter of the commissioners and how they conduct themselves. Despite having adopted criteria for assessing candidates and guidelines for conducting interviews, little has changed in the commissioners’ behaviour.
Maya will have to ensure that the guidelines and criteria are strictly adhered to. She must also seriously consider implementing a code of conduct for the commissioners, which has been proposed by many civil society organisations familiar with the JSC’s work and infamy.
On the disciplinary side, Maya will have to shepherd proposed amendments to the JSC Act to capacitate the judicial conduct committee for the timely processing of complaints against judges. The current ad hoc system, which relies on overburdened sitting judges, simply does not work. There are plenty of retired judges who can serve on that body and relieve their active service colleagues from the responsibility. The era of taking 16 years to finalise a misconduct complaint must now become a distant memory.
In recent years, the JSC has all but made it a requirement that candidates for appointment to the Constitutional Court must have acted in that court. But acting appointments to the court appear to be solely at the discretion of the chief justice — by invitation only. Despite the constitutional procedure for acting appointments being relatively clear, Zondo’s interview in 2022 revealed that the actual practice of appointing acting judges did not fully accord with it. The same applies to all other superior courts. Maya must now devise a clear, uniform policy for acting appointments to avoid the risk of disadvantaging otherwise qualified candidates who have no acting experience simply because they were not lucky enough to get invited to act. This is crucial for attracting the best possible candidates for appointment.
Another pressing issue is the skill and expertise of the judiciary. Albeit in hushed tones in dimly lit restaurants, lawyers and legal academics have raised real concerns about the ability of our judges to deal with increasingly complex commercial and private law matters, and more recently even constitutional matters. Academics question the courts’ ability to grapple with the common law and thus, their ability to develop it in line with the constitution. Although the South African Judicial Education Institute is meant to provide continuing training for judges in these areas, questions about the quality and effectiveness of that training persist. The chief justice will have to ensure that judges have access to all the tools of their trade, including any specialised training they may require.
Finally, what will perhaps be Maya’s greatest challenge is the restoration of the integrity of, and full public confidence in, the judiciary, which has over the past few years been marred by controversy. To make matters worse, the conduct of legal practitioners has also left much to be desired. The inability (real or perceived) of the Legal Practice Council to discipline practitioners who behave badly seems to have emboldened others to act similarly. Maya will have to act swiftly and firmly to arrest the decline in professional and ethical conduct by practitioners both in and out of court. The dignity and integrity of the judiciary is a key component of the rule of law and cannot be neglected.
The incoming chief justice faces an uphill battle. But it is not insurmountable. She can surely count on the support of civil society to make sure that the independence of the judiciary and the rule of law are maintained at all times. One hopes that her meteoric rise within the judiciary means that she commands the respect of her colleagues and that her work will be made all the more easier for it.
• Mafora is the senior researcher at Casac
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