By Staff Reporters

When President Cyril Ramaphosa finally decides who he appoints as the next Chief Justice, he would have gone through a journey fraught with tough choices.

He is spoilt for choice, but his biggest headache might be the political and legal ramifications of his decision. As head of state, it is his special prerogative, in terms of the constitution, to appoint the Chief Justice.

The previous week, the Judicial Services Commission (JSC) concluded interviews for the position of the Chief Justice of South Africa. Butin an unprecedent move, the JSC announced on Saturday that it had opted for Supreme Court of Appeal (SCA) president, Mandisa Maya, to be SA’s first woman chief justice. This has landed the selection process into a possible legal quagmire as some say this could open the appointment to litigation.

JSC spokesperson Adv Dali Mpofu said Maya was chosen by a majority vote. Other candidates included Gauteng judge president Dunstan Mlambo, who came in second, followed by Constitutional Court justice Mbuyiseli Madlanga and acting chief justice Raymond Zondo.

The week-long interview process was embroiled in controversy as claims of an unsubstantiated smear campaign and complaints of sexist questions were levelled against some candidates. This has brought into question the role of the JCS and its composition with some commentators going as far as raising questions about the participation of politicians in the processes.

Deputy Chief Justice Zondo, was at the receiving end of the worst wrath of the hostile commissioners. Commissioner Julius Malema led the charge. He asked why Zondo did not subpoena former spy boss Arthur Fraser to testify before the State Capture inquiry and potentially lift the lid on the uses of an alleged R9billion secret intelligence slush funds. Even after Zondo explained the administrative requirement for Fraser to apply, Malema was unrelenting.

The EFF leader made reference to meetings Zondo had with then ANC president Jacob Zuma in 2008. This was in the wake of comments made by Malema, who at the time was a fierce Zuma ally and was president of the ANC Youth League. He said he was concerned that Zondo might be too involved in politics and questioned whether he brought the judiciary into disrepute when he met with Zuma.

Then, there were meetings with President Cyril Ramaphosa, which Zondo said they were to brief the executive authority responsible for the commission’s establishment on matters including budgetary constraints, but also to provide updates on “progress”. This raised many questions as it could have any number of meanings.

The dailymaverick.co.za’s Rebecca Davis wrote a piercing article which she started off with a warning: “South Africa’s new Chief Justice will need a titanium backbone and a strong mindset.”

In her analysis titled, JSC interviews for next chief justice were farcical, thanks to Mpofu and Malema, Rebecca wrote, “Presenting yourself to the JSC for your interview has become something of a spiritual suicide mission for certain kinds of judicial candidates.”

As she correctly pointed out, that is how it is supposed to be.
“It should go without saying that this is not supposed to be the case. The most accomplished legal figures in the country should not have to approach the JSC braced for full-blown public humiliation.

“The inevitable effect will be that fewer and fewer qualified candidates will be willing to subject themselves to that ordeal. Any aspirant jurist who witnessed how Judge Dunstan Mlambo was ambushed this week with anonymous sexual harassment rumours during his interviews, will have been given serious pause for thought about whether accepting judicial nomination is worth potentially seeing your reputation go up in flames.

“The JSC is currently a farce. It’s not just that commissioners increasingly use the platform primarily to make political points, take digs at opponents and ventilate grievances against judges who have previously ruled the ‘wrong’ way. The general level of questioning, even when not expressly intended to sabotage a candidacy, is also poor.”
It’s Ramaphosa prerogative

The President is still waiting for a formal report from the JSC recommending justice Maya as its choice for SA’s next chief justice. But Ramaphosa will have to decide whether to back the commission’s candidate or choose another, in the face of a possible legal challenge to the process.  

Professor Thuli Madonsela, a former Public Protector who served on the panel that shortlisted potential Chief Justice candidates, told News24 that Ramaphosa never asked the JSC to recommend a preferred candidate. This could make the appointment unconstitutional.
Political analyst Susan Booysen said Ramaphosa now found himself in a no-win situation.

“It is almost a no-win situation for Ramaphosa. On the one hand, he has to and he chose to consult the JSC and they have given that opinion perhaps despite what is expected,” Booysen said.
She said Ramaphosa would have to go with the JSC’s recommendation and appoint Judge Maya.

“But Ramaphosa will probably have to find the points of credibility and just go with the current recommendation and hope that it does not backfire in terms of credibility,” Booysen said.
Bottom of Form

Madonsela said the JSC’s recommendation was an important moment in history.

“The nomination of the Supreme Court President Mandisa Maya to be considered by the President as Chief Justice is a historic development in South Africa. As we await the finality of things, we should take into account that it’s the prerogative of the President to nominate someone and then the President consults parties.”
The decision now solely lies with Ramaphosa to appoint the Head of the Judiciary.

“First, it is appropriate to mark the recommendation of the JSC with the requisite level of praise for, and acknowledgment of, the importance of this recommendation. Judge Maya meets the requirements for the job with flying colours,” political commentator, Eusebius McKaiser, said.

He said she has demonstrable intellectual leadership, as well as proof that she can look after the administrative architecture of parts of the judiciary such as the SCA with effectively and efficiently.

“She has several degrees from here and overseas, as well as various honorary doctorates. Hers is, overall, an academic and judicial CV that suggests she is eminently qualified to be our first woman chief justice. Of course, president Cyril Ramaphosa has the ultimate say and is not constitutionally obliged to side with the JSC,” political analyst, Eusebius McKaiser, said.

Justice Maya matriculated from St John’s College, in Mthatha, and went on to obtain three degrees in law from the University of Transkei (B Proc in 1986), the University of Natal (LLB in 1988) and Duke University in the US (LLM in 1990).

She worked in various courts and positions   throughout her career, namely as an attorney’s clerk at Dazana Mafungo Inc in Mthatha, as court interpreter and prosecutor in the magistrates’ court and as a legal policy counsel and lobbyist at the Woman’s Legal Defence Fund in Washington DC in the US.