Judge Mandisa Maya will be SA’s first female Chief Justice – but is anyone paying attention?

The year was 2011, and just one candidate had been put forward by then-president Jacob Zuma to be interviewed by the Judicial Service Commission (JSC) for the post of South Africa’s Chief Justice.

That was Judge Mogoeng Mogoeng, whose nomination had caused horror from many sections of the legal establishment, the press, and a social media platform which was just beginning to spread serious tentacles across the country: Twitter.

The Mogoeng-focused consternation was well-founded. For one thing, there was an eminently suitable candidate for the post who had been overlooked for a second time: then Deputy Chief Justice Dikgang Moseneke. 

For another, Mogoeng’s prejudiced views on homosexuality, his questionable judgments in sexual violence matters and his habit of stirring lavish seasonings of religion into his jurisprudence were by then well known.

Moseneke, who was chairing the JSC session, summed up the concerns in advance: “We have gender sensitivity, we have homophobia, we have the issue of religious faith,” he said at the outset.

Little wonder that the hearings were accompanied by protests outside the venue from activists.

What is more surreal, looking back, is what a public spectacle the hearings were – deliberately held over a Saturday and Sunday at the Cape Town International Convention Centre to enable anyone who felt like it to pull in and observe. The interviews went on for the best part of two days.

Fast forward to May 2024, some 13 years later. How very different things are now – and perhaps not entirely in a positive way.

The JSC interview to confirm the nomination of Judge Mandisa Maya as the country’s Chief Justice was held at a Johannesburg hotel on a Tuesday morning. The audience was comprised of a handful of journalists, and proceedings were wrapped up by lunch.

Of course, Maya is no Mogoeng (and even Mogoeng turned out to be no Mogoeng, at least in the sense that his harshest critics feared). But there has been a striking lack of public engagement on the issue of South Africa’s next Chief Justice – perhaps partly because her identity has been a foregone conclusion since President Cyril Ramaphosa announced Maya as his sole nominee for the post in February; and partly because the nation’s attention is elsewhere, with the elections just a week away.

More problematically, however, this lack of deep engagement seemed to filter down to the JSC itself.

Judge Maya has a tendency to start JSC interviews strong and then almost visibly run out of steam. This was very much the case on Tuesday as well, where the current Deputy Chief Justice was energetic in setting out her vision for the judiciary, and then gave answers of rapidly diminishing substance to the already pretty insubstantial questions posed to her by commissioners.

By the end of the interview, her responses were of astonishing brevity; sometimes just a few words in length. But perhaps that was a reflection of the nature of the JSC questioning, which rarely seemed designed to test her in any significant way.

Yet this is the person who will be leading South Africa’s judiciary until March 2034, holding unquestionably one of the most significant posts in the country.

The Chief Justice, as Maya laid out in her opening remarks to the commission, is responsible for: sitting in the Constitutional Court; administering the apex court, including allocating cases; providing oversight of all South Africa’s courts; chairing bodies like the JSC; determining budgets; swearing in public figures; representing South Africa in various international legal forums; and much else besides.

One responsibility which Maya did not mention, but which her predecessor Judge Raymond Zondo has had to manage on a number of occasions, is that of defending the judiciary against attacks from politicians and maintaining a steely division between the executive and the judiciary.

One of the concerns of legal insiders is that Maya may fundamentally be a more political figure than Zondo. She is known to enjoy the support of the ANC’s National Executive Committee, for instance, although as a trailblazing black woman from the rural Eastern Cape this is not surprising.

Still, it may have raised eyebrows to hear Maya tell the JSC that one of her intentions as Chief Justice was to “intensify the relationship between the leaders” of the judiciary, the executive and the legislature.

Maya’s argument was that much of what the South African courts need to function better lies within the gift of the executive and the legislature, and a closer relationship could thus improve judicial functioning. 

But she was not seriously probed on her thoughts regarding the doctrine of the separation of powers – unlike, say, the candidates for the Supreme Court of Appeal who were interviewed on Monday.

Most of Maya’s ideas for the enhancement of judicial functioning seemed otherwise uncontroversial, and have long been on the agenda of the office of the Chief Justice, including the appointment of more legal researchers, the upgrading of court infrastructure, appointing panels of judges or experienced lawyers to assist with the sifting of cases, and scrutinising the process of appointing acting judges.

Much of this takes money which Treasury has informed the office of the Chief Justice is currently unavailable, however. Asked by Justice Minister Ronald Lamola how she would deal with the problem of ever-shrinking budgets, Maya responded rather vaguely that there were departments which had been excluded from budget cuts.

In her prefatory comments to the JSC, Maya noted that getting a taste of what the Chief Justice job entails has been a “sobering experience”.

Addressing Zondo, she said: “There is absolutely nothing attractive about your job, Chief Justice… If I had my way I would go and hide in a hole somewhere. I’m not sure I want it. It’s too hard.”

She was, needless to say, being at least partly tongue in cheek – and probably also partly adopting the mantle of self-deprecating humility which society still demands from professional women to a much greater degree than from professional men.

But there is little doubt that the post Maya will be given for a decade is indeed a punishing one. 

And while there is much to celebrate about the ascent of the first woman to this job, it would be comforting to feel that there was a greater degree of scrutiny and analysis around this appointment. DM