A travesty of justice?

For the first time in SA’s history, a black woman judge is on the brink of becoming chief justice. This should be cause for celebration — not only for Supreme Court of Appeal president Mandisa Maya, but for the country and the judiciary too. But the process has been marred by controversy as a result of a chaotic Judicial Service Commission (JSC) process.

After a week of interviews with four candidates — Constitutional Court justice Mbuyiseli Madlanga, Maya, Gauteng judge president Dunstan Mlambo and acting chief justice Raymond Zondo — the JSC put Maya forward as its preferred choice to head SA’s judiciary.

But the interview process itself was problematic. Though the commission did raise pertinent questions, it also showed itself to be inconsistent, with critics suggesting Maya got an "easy ride" compared with her peers. Madlanga and Maya, for example, fielded far fewer questions on specific judgments than either Mlambo or Zondo.

Then, of course, there was EFF leader and JSC commissioner Julius Malema’s question to Madlanga — picked up by other commissioners in the following days — about whether SA is "ready" for a woman chief justice.

Mlambo, for his part, had to fend off unsubstantiated rumours about alleged sexual misconduct — later struck from the record. But his response, too, drew criticism, with advocate Dali Mpofu suggesting it may have "poisoned" his chance of promotion, and attorney Ettienne Barnard taking issue with his description of those in the legal profession as "gossips".

He also had to face the suggestion that he’s made rulings "favourable" to President Cyril Ramaphosa, while "castigating" former president Jacob Zuma in his judgments (and those of a bench on which he’s sat).

Zondo, too, came in for a grilling — including about why former spy boss Arthur Fraser didn’t testify at the state capture inquiry, over private meetings with Zuma, whether he is sufficiently in touch with judges’ day-to-day challenges, and whether chairing the state capture commission created a conflict of interest.

The concern, in some legal circles, is that the JSC interviews served the interests of politics over justice. As Johann Kriegler of Freedom Under Law notes: "A calculated strategy became evident when manifestly friendly and supportive questions were addressed to justice Maya and, in stark contrast, judge Mlambo was grilled so crudely that the chairperson admonished Mr Malema for his aggressive manner and tone. It became all the more plain that justice Maya was the favoured candidate and two strong contenders had to be knocked out, or at least materially handicapped."

At the very least, it cast a pall over the appointment of SA’s next judicial head.

In the usual course of events, it’s the president’s prerogative to appoint a chief justice of his choice after consulting the JSC — a body of judges, politicians, lawyers and scholars that vets judges — and leaders of the National Assembly.

On this occasion, in the interests of transparency and participation, Ramaphosa added preliminary steps. He invited the public to nominate candidates for the position. An advisory panel then decided on a longlist of eight, which fell to six after two withdrawals. Ramaphosa referred four names to the JSC.

He must now decide to either take the JSC’s cue and appoint Maya, or choose another judge.

The president is not legally bound by the JSC’s preference. But, as Prof Zozo Dyani-Mhango, head of public law at the University of Pretoria, notes: "The president’s ‘prerogative’ is derived from the constitution and, just like any of his constitutional powers, is subject to judicial review. He is not going to just ignore the JSC recommendation and choose another without valid reasons. He chose this process."

Judges Matter researcher Mbekezeli Benjamin, who was among the observers at the JSC’s interviews, agrees. "Ramaphosa can choose to disagree with the JSC and select the candidate he prefers, but he must have cogent reasons for doing so," he tells the FM. "It would set a terrible precedent if the president chose to ignore the JSC’s advice, even if he has reservations about how it was prepared."

It does drop Ramaphosa into a political quagmire, says University of Cape Town (UCT) associate professor of law Cathleen Powell. "He can choose whoever he wants, constitutionally speaking," she says. "[But] politically speaking, we’ve all just sat through five gruelling days and the JSC has come up and named a person. So, it’s going to create pressure and tension if he chooses somebody else."

Helen Suzman Foundation (HSF) director Nicole Fritz takes a different tack. In her view, Ramaphosa should disregard the interviews. If the commission’s own process evinces irrationality, she says, it detracts from the exercise of the president’s powers "and renders [the process] susceptible to review".

Should Ramaphosa pick SA’s top judge based on a flawed process, the concern is that any appointment he makes will not withstand legal scrutiny. If the JSC process were reviewed on grounds of irrationality and set aside, it could trigger a rerun of the chief justice interviews.

The HSF, for one, is weighing up the pros and cons of litigating. "We at the HSF are considering legal options," Fritz said soon after the JSC’s announcement on Saturday. But, she added: "We are mindful that SA cannot well afford any further delay on the appointment of a chief justice and that a rerun of last week’s interview process would not necessarily produce any improved process."

(The last time the JSC was dragged to court, over impugned interviews it conducted in April last year, the outcome of the reboot was exactly the same.)

As recent rounds of judicial interviews show, the JSC’s faults are many and, where judicial appointments are poor, it shoulders a fair deal of responsibility.

Many who have followed the JSC’s interviews for years lament the body’s indisputable decline.

In Benjamin’s view, the chief justice brouhaha points to a JSC that "is broken in key aspects and needs serious reform". Its faults could be symptomatic of defects in both the judicial and political leadership of SA.

Fritz is scathing. "The process which played out over the past few days is a desecration of what it should mean to engage in the selection of our judiciary leader," she says.

Still, Benjamin is clear that such criticisms are focused on the JSC, and "do not in any way reflect on justice Maya, nor do they undermine the legitimacy of her recommendation".

"She had the most compelling vision for the judiciary, which was backed by a credible track record," he says.

Former JSC commissioner and senior advocate Dumisa Ntsebeza also approves of the recommendation. Speaking to news channel eNCA on Sunday, he said he was glad Maya had made it. "I think she’s a worthy candidate," he said, adding: "The majority of commissioners believe she is the kind of judge that we want at this time."

UCT public law lecturer Nomfundo Ramalekana similarly believes Maya has shown she has the "capability, vision and integrity" to lead SA’s judges. She is "a candidate with the skill, expertise and experience that would greatly benefit the SA judiciary".

As for the antiquated notion that SA may not be "ready" for a woman chief justice, or that such an appointment would amount to window-dressing, Ramalekana says: "There are and have been many competent, capable and skilled women in the SA judiciary. It would be inaccurate to say that the appointment of a candidate such as Maya was solely, if at all, based on affirmative action."

But Fritz believes the flawed process did Maya no favours. "Far from suggesting that a woman might take the helm of the judiciary on the basis of merit and their own intrinsic worth," she says, it "perversely implies that [women] can only do so as a result of corrupted, degraded process".

Powell is similarly dismissive. She believes the JSC treated Maya with "kid gloves" — treatment that robbed her of the opportunity to demonstrate whether she really is the best person for the job. "Obviously, she did enough that the JSC could recommend that she be appointed, but it wasn’t a fair chance," she says.

The questionable JSC interview process created more problems than it solved

—  What it means:

In her view, this means the JSC’s recommendation looks suspicious and contrived.

Such perceptions aren’t helped by the opacity that has crept in. For all the talk of a "transparent" process, the JSC’s deliberations — and those of the president’s advisory panel — have taken place behind closed doors. So South Africans remain in the dark as to what will have informed the decisions around the top judicial job.

"Let us take note that the JSC did not provide reasons for the recommendation [of Maya]," says Powell. "The JSC did not explain why it recommended one person instead of just passing on four reports. This is uncharted territory, because it’s the first time we’ve had a number of candidates."

Not that the JSC was under any obligation to put forward just one name. In fact, members of the panel themselves appeared to still be undecided about this when they began interviews last week, with Northern Cape judge president Pule Tlaletsi asking Mlambo if he thought the JSC should suggest one or two candidates, or simply provide a list of the interviewees’ strengths and weaknesses.

In recommending Maya after such a flawed process, the JSC has put Ramaphosa in a thorny position. It would look "odd" — and likely spark criticism — if he were to diverge from the commission’s recommendation, yet to appoint her would give credence to a controversial process, which could put the rule of law in jeopardy.

"It’s a poisoned chalice now for whoever gets the position," says Powell. And not a promising start for the incoming head of SA’s judiciary.