The narrative suggesting that Justice Maya’s appointment is merely to fulfil gender diversity requirements rather than being based on merit is both unfortunate and unfounded.
Deputy Chief Justice Mandisa Maya faces the formidable task of providing stellar leadership and preventing the fragmentation of the judiciary. Before delving deeper into this opinion piece, let me state a disclaimer: I have supported the nomination of Justice Maya as the country’s Chief Justice since her first candidacy against Chief Justice Raymond Zondo and others, and I continue to support her nomination this time around.
I still firmly believe, as I have expressed on this platform and elsewhere, that Maya is the ideal candidate to become the country’s next Chief Justice.
I do sometimes make time to read comments on articles in Daily Maverick as they provide a glimpse into societal feelings and laypersons’ opinions. One particular view that caught my attention was related to an article penned by Rebecca Davis, titled “Judge Mandisa Maya will be SA-First female chief justice but is anyone paying attention”.
“Let’s be brutally honest, she was appointed for ‘gender diversity’ (because she’s female, not male); and not on merit — both of which are unfortunate for the judiciary, the rule of law and jurisprudence,” one anonymous commenter wrote.
The narrative suggesting that Justice Maya’s appointment is merely to fulfil gender diversity requirements rather than being based on merit is both unfortunate and unfounded. It is a narrative that must be condemned in the strongest language possible.
While it is true that gender diversity on the South African bench remains an issue, it is essential to recognise that Justice Maya’s qualifications and experience make her an exemplary candidate for Chief Justice. Reducing her appointment to a token gesture undermines her significant contributions and capabilities.
Judicial integrity and criticism
As Maya herself has articulated, her selection is a step towards addressing gender imbalance, but it is her competence and dedication that truly qualify her for this pivotal role. To clarify for any myopic and ignorant person out there, Maya would become the first woman to be appointed as Chief Justice, following her historic achievement as the first woman to serve as President of the Supreme Court of Appeal (SCA).
Her appointment will be a milestone etched in South African memory, not only because of her pioneering role, but also because she stands as a trailblazer for female jurists in the country. With Maya leading the Constitutional Court, South Africa is further promoting Africa as the continent with the world’s highest number of women heading constitutional courts and serving as chief justices.
Maya will be taking over the leadership of a court that has faced significant criticism over time. Recently, after the IEC appeal judgment, Prof Sipho Seepe penned a very thought-provoking opinion that highlighted some of these criticisms, arguing that South Africa is on a slippery slope to judicial tyranny.
According to Seepe, “there is little doubt that the integrity of the Constitutional Court is at stake. Respect and integrity are earned. They are not assumed. They cannot be forcefully imposed, not even by the Constitutional Court… Power is both seductive and addictive. Often individuals have abused it for no reason other than the fact that they can. There is a growing impression that the apex court is guilty of displaying an arrogance of power when handling anything that has to do with (Jacob) Zuma”.
In his criticism of the Constitutional Court, Seepe referenced a lack of judicial discernment that Dr Ziyad Motala, a professor at Howard Law School in Washington DC, had decried in his damning assessment of that court. Motala argued that some of the Constitutional Court's judgments “smack of personal predilections and politicking... Of late, some important court decisions represent a prattle of nonsense leading to whispers that our apex court at times projects as a junior moot court bench.”
During her interview for the position of Chief Justice, Maya indicated her commitment to a judiciary that inspires public confidence, as any head of a court should. “Our country has experienced significant upheavals in recent times. Therefore, the necessity for an impartial, independent, effective, accountable, responsive, and cohesive judiciary has never been greater,” Maya emphasised during her interviews.
One hopes that Maya’s vision of a cohesive judiciary will not result in a court that frowns upon dissenting judgments, nor judges who adhere to the fallacy of unanimity at any cost.
Dissenting opinions
There is no fault in having a divided court with dissenting opinions. In fact, some of the most influential decisions globally, and those setting enduring precedents, have emerged from dissenting and minority judgments. Minority and dissenting judgments have played significant roles in the evolution of law, sometimes becoming the foundation for future rulings that overturn initial decisions.
For example, in Minersville School District v Gobitis (1940), the majority decision of the US Supreme Court was that public schools could compel students to salute the American flag and recite the Pledge of Allegiance, despite religious objections. In dissent, Justice Harlan F Stone argued that the decision infringed upon individual freedoms and religious liberty. Justice Stone’s dissent was embraced in West Virginia Board of Education v Barnetter (1943), where the Supreme Court reversed itself and held that compelling public school children to salute the flag was unconstitutional.
The debate over the interpretation of constitutional provisions within our Constitutional Court should be viewed as an opportunity for the court to recognise that dissenting opinions have the potential to challenge prevailing interpretations and, over time, influence the trajectory of legal principles, thereby effecting profound changes in the law.
This is the essence in part of “an impartial, independent, effective, accountable, responsive, and cohesive judiciary” about which Maya is talking.
It is crucial to avoid the hard-nosed approach exhibited by the Constitutional Court towards the Electoral Court as much as possible. In the judiciary, there are no sacred cows; judges are entitled to arrive at different interpretations and may be subject to criticism for reaching conclusions deemed incorrect in law without their authority being perceived as threatened or delegitimised.
Embracing dissent and acknowledging divergent viewpoints can enhance the richness and resilience of our legal system.
Precedence and interpretation
Consider for example the criticism of the flawed Makhanda High Court judgment by Acting Judge Tembeka Ngcukaitobi (with Judge Nyameko Gqamana concurring) that could have set a dangerous, ridiculous and archaic precedent with regard to the understanding of the crime of rape had it not been overturned by the Supreme Court of appeal recently.
As the SCA said, leaving the Makhanda judgment to stand as precedent “would not only be a perverse incentive to unscrupulous persons taking advantage of their victims, but also have the effect of frustrating the speedy realisation of the constitutional objective of gender equality which is one of the foundational values of our constitutional order. In addition, this would also entrench patriarchal attitudes, stereotypes and mindsets that the rights of women and children, in particular, to their dignity and physical integrity count for little and can therefore be gratuitously violated with impunity.”
The Constitutional Court, in presenting sermons of precedence, must always keep in mind that while adherence to precedent is valuable, it should not become an immutable rule.
In constitutional adjudication, where interpretations can have far-reaching impacts on society, the willingness to revisit and potentially overturn past decisions is essential for justice and progress. Admittedly, the majority of judgments in the Constitutional Court set binding precedents that guide future cases. However, these decisions are not infallible.
On the other hand, minority or dissenting judgments, while not legally binding, offer critical insights and alternative interpretations of constitutional issues. They often highlight potential flaws, overlooked perspectives, and emerging legal principles that the majority may have ignored or undervalued. Minority judgments can act as beacons for future judicial consideration, providing a framework for re-evaluating established precedents.
Perhaps I must add “judicial humility and flexibility” as paramount to building a strong, forever-credible Constitutional Court to fulfil its role effectively in addition to the quest for an impartial, independent, effective, accountable, responsive, and cohesive judiciary to which Maya alluded.
My concluding remarks to the leadership of the Constitutional Court under Maya are the following: Optamus tibi bene successum dum iudiciarium in Africa Australis ducere incipis*.
Attentive South Africans heard you when you said: “I’m not here because I’m a woman, I’m a worthy judge… I’m just a good woman judge.”
(*We wish you every success as you begin to lead the judiciary in South Africa.) DM