OTHER people apparently concern themselves more with the glass ceilings above Mandisa Maya's head than she does herself. By the time President Cyril Ramaphosa appointed her last week as the next chief justice, there were only remarkably muted references to the fact that she will be the first woman to hold the position.
One of the reasons is that it's not the first time Maya has been considered for the job. The previous occasion was in 2022, when she was the only woman among four candidates considered by the Judicial Service Commission (JSC). When asked if South Africa was “ready" for a female chief justice, Maya responded:
“I don’t think that’s a proper question to ask because it implies negative things. South Africa has always been ready to have a woman chief justice. We’ve had [Kate] O’Regan, we’ve had [Yvonne] Mokgoro. We’ve never had a shortage of women in the judiciary.
“Was it ever asked if South Africa is ready for a black chief justice? When that question is asked, it is as though [women] are this homogenous group that’s been done a favour [and] as though at some stage you have to check if we’re ready to become leaders.”
The JSC was convinced and recommended that Ramaphosa appoint her to succeed Mogoeng Mogoeng after his retirement. However, the president — somewhat controversially — decided to exercise his prerogative and instead appoint Raymond Zondo. He did, however, designate Maya as deputy chief justice.
There are several possible reasons for Ramaphosa's preference at the time. First, Zondo was already acting as chief justice, and there was no good reason to overlook him for the full-time position. Zondo had also served as a Constitutional Court justice since 2012, was only a few years away from retirement, and was the chairperson of the commission investigating state capture. It was also mentioned that if Maya were to become chief justice, she would be missed at the Supreme Court of Appeal, where she had been president since 2017.
Regarding this, she said: “I and my colleagues find [that argument] patronising and patriarchal. It implies I lead an incompetent bunch who would fail if I leave, and nothing could be further from the truth. The SCA has competent staff [who are both] black and white. There is no shortage of skill, leadership and experience.”
Maya is simultaneously a champion for transformation and a pragmatist. When asked in 2022 why so many white men had been appointed as judges under her leadership, she replied:
“We have to acknowledge that black legal practitioners who become judges started on the back foot. White male judges have more experience, particularly in niche areas of the law. It’s not a sin to appoint white judges in an acting or permanent position. I am a major proponent of transformation. If you look at who acts or gets appointed at the end of the day, I am transforming the court. What I am [also] doing is getting junior women who need the transfer of skills [into the right positions]."
The irony of this is that Maya, an appeal judge since 2006, is in this respect far more experienced than almost all her predecessors. The SCA offers exposure to a broader spectrum of jurisprudence than the Constitutional Court, which also means it's a good training ground for the challenges of a chief justice. Yet none of Maya's recent predecessors — Zondo, Mogoeng, Dikgang Moseneke, Pius Langa and Arthur Chaskalson — had SCA experience when they were appointed as chief justice.
During her time as an appeal judge, Maya has on several occasions differed from respected colleagues in minority judgments, and she has been vindicated by the Constitutional Court. She also wrote the SCA's first judgment in Xhosa, has acted as a judge in the high courts of Lesotho and Namibia by invitation, and was chairperson of the Law Reform Commission for three years.
The reading of the verdict in Xhosa is also interesting for another reason: early in her career, Maya worked as an interpreter (and later public prosecutor) in Mthatha magistrate's court. One does not have to spend much time in any court before realising what a challenge it remains to preside over people who cannot state their case in their own language.
It is also in that part of the world where her roots lie: she matriculated at St John's College in Mthatha and subsequently obtained the degrees BProc from the University of Transkei and LLB from the University of Natal. In 1989, thanks to a Fulbright scholarship, she went to the US, where she obtained an LLM at the respected Duke University School of Law. She then also worked as a consultant for the Women's Legal Defense Fund in Washington, DC before returning to South Africa in 1991. Among other things, she practised as an advocate for five years before becoming an acting judge in the high court in Mthatha in 1999.
If it is true that you can know a judge by her enemies, then Maya is an unbeatable choice as chief justice: she has several times publicly butted heads with the likes of Julius Malema and Dali Mpofu, who sometimes did not hesitate to make blatantly sexist attacks on her. And last week, after her appointment became known, an obscure website called Opera News claimed out of the blue that Maya and former president Jacob Zuma are old friends and have a “close relationship". She supposedly referred to Zuma as “like a brother to me and father to my children".
The truth, Maya's office said in response, is that they have never met, let alone had a close relationship. Zuma appointed her as president of the SCA in 2017, but she said back then, “… the person who nominated me, who is President Zuma … does not know me from a bar of soap".
No one knows what the agenda was behind this piece of disinformation, but Maya's appointment was in any case widely welcomed in the legal profession. The lawyer Richard Chemaly summed it up nicely in The Citizen last week:
“It’s not every day South Africans are treated to an exciting and good appointment to an important desk. It’s even more seldom that we’re treated to the appointment of somebody who has been preparing diligently, patiently and enthusiastically for some 25 years for the role … and doing it with distinction."
♦ VWB ♦
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