- The JSC on Saturday announced it would recommend that President Cyril Ramaphosa appoint Supreme Court of Appeal President Mandisa Maya as the next Chief Justice.
- Legal experts contend the JSC was not entitled to recommend any Chief Justice nominee to Ramaphosa, but only to establish the suitability of all four candidates.
- Professor Thuli Madonsela, who was part of the panel which shortlisted candidates for the position, has slammed the interview process as compromised by “clear agendas”.
President Cyril Ramaphosa never asked the Judicial Service Commission (JSC) to recommend a preferred Chief Justice candidate – and experts say it unconstitutionally overplayed its hand when it endorsed Appeal Court President Mandisa Maya as the next judicial leader.
“The JSC has no power to recommend [a Chief Justice nominee],” Professor Thuli Madonsela, a former Public Protector who served on the panel that shortlisted potential Chief Justice candidates, told News24 on Sunday.
“The JSC is one of several structures that the president has to consult,” she said. Madonsela pointed out that Ramaphosa was also obliged to engage with the leaders of political parties in the National Assembly before he appointed a Chief Justice.
She said: If the president, for example, chooses Judge Maya, that would be because in this consultation of multiple centres she emerges as the person… But it also can’t be said that if he chooses another candidate, it would be because he ignored the JSC, because the JSC is one of multiple bodies that he is connotationally required to consult with.
She added that Ramaphosa had to approach each consultation process “with an open mind”.
“The Constitution does not give him the power to give more weight to any of the structures that he has to consult,” she said.
Council for the Advancement of the SA Constitution (Casac) executive secretary Lawson Naidoo agreed and said the JSC failed to fulfil its constitutional responsibilities by evaluating the candidates selected by Ramaphosa and providing their input to him.
“What they’ve done is usurp the power of the president by putting forward a candidate. It’s not their responsibility to select from the four candidates, but rather to enable the president to make a decision,” he told News24 on Sunday.
Helen Suzman Foundation executive director Nicole Fritz called on Ramaphosa to disregard the JSC’s interviews and deliberations.
Despite the fact that he is facing an investigation over professional misconduct towards acting Chief Justice Raymond Zondo at the State Capture Inquiry, advocate Dali Mpofu says he has no apprehension in being part of Zondo’s upcoming interview.
‘Sham’ of a process
“The JSC has failed to appreciate the role allocated to them in this process – to consult and express a view as to the suitability of candidates, not to take for themselves the president’s power to determine the preferred candidate,” Fritz said.
“The process which played out over the last few days is a desecration of what it should mean to engage in selection of our judiciary’s leader.”
The JSC’s shambolic handling of the Chief Justice interviews of Maya, Acting Chief Justice Raymond Zondo, Constitutional Court Justice Mbuyiseli Madlanga, and Gauteng Judge President Dunstan Mlambo came just months after it agreed to rerun its interviews for two vacancies at the Constitutional Court. This came after Casac took it to court over what it slammed as a “sham” of a process.President of the Supreme Court of Appeal Mandisa Maya on day 2 of the interviews for the next Chief Justice on 2 February 2022.Gallo ImagesPHOTO: Gallo Images/Daily Maverick/Felix Dlangaman
Despite being accused of not treating certain Constitutional Court candidates fairly, putting inappropriate questions to them and failing to demonstrate an open mind during the interview process during the April 2021 interview process, the JSC last week appeared to show manifest bias against Maya’s most serious competition: Mlambo and Zondo.
As Fritz noted, that meant the JSC’s recommendation that Maya be appointed as Chief Justice was profoundly tainted by the sexist assumption that she was incapable of getting the position on her own – which was what Maya made clear she was there to do.
She said:Far from suggesting that a woman might take the helm of the judiciary on the basis of merit and their own intrinsic worth instead perversely implies that they can only do so as a result of a corrupted, degraded process.
Professor Helen Kruuse of Rhodes University has written to the chairperson of the proceedings, Acting Judge President of the Supreme Court of Appeal Xola Petse. Kruuse raised concerns about, among other things, “the sexist nature of questions” posed to Maya – and the apparent unfair targeting of her most serious competitor, Gauteng Judge President Dunstan Mlambo.
During Maya’s interview, and in a sexually suggestive aside, JSC commissioner Dali Mpofu stated that he had “spent a night” with her. He later clarified that this was in reference to an all-night study session.
Kruuse said: “It feels like a bit of a Pyrrhic victory for women in the profession, generally. While there were a few questions on relevant issues such as customary law and protection of vulnerable women [a fundamental and pressing issue], I was frustrated that she (Maya) was taken at face and gender value.”
Madonsela agreed. “It’s so sad, because everyone in this country would love to see gender transformation and a woman Chief Justice, but the way this whole process was executed drastically erodes the legitimacy of its outcomes,” she told News24.
Cheap political point-scoring
“The fact that some people went there with an agenda, they made it clear that they’re there to campaign as opposed to here to evaluate, really made it a nasty experience,” she added.
Rather than showcasing the abilities of the four judicial leaders nominated for Chief Justice appointment by Ramaphosa, the interviews of Zondo and Mlambo degenerated into cheap political point-scoring and blatantly dishonest and unfair questioning.
In one of the worst manifestations of this, Mlambo was confronted by Mpofu and EFF leader Julius Malema with questions about unsubstantiated sexual harassment rumours concerning him.slide 1 of 1Dunstan Mlambo, Judge President of the Gauteng Division of the High Court, on Day 3 of the chief justice interviews.Gallo ImagesPHOTO: Gallo Images/Daily Maverick/Felix Dlangaman
While it was JSC practice that candidates who will be asked potentially damaging questions about their conduct or history be forewarned and presented with a written complaint, Mlambo was questioned about these rumours without any warning – and without any formal complaint being levelled against him.
As a result, acting JSC chairperson Petse – Deputy President of the JSC – expunged from the record the questions put to Mlambo about these rumours, as well as his vehement denial of any wrongdoing.
Asked about the controversy surrounding the JSC’s treatment of Mlambo, Mpofu – who is the JSC’s spokesperson – told News24 “people are just exaggerating, there’s nothing”.
Mpofu said:What was being done, because these rumours are flying around, was to give him an opportunity – because he could be the Chief Justice of the country, for God’s sake – to give him an opportunity to clear it.
“GBV (gender-based violence) is one of the most important issues in the country, even if there’s even a one percent chance… that this guy was a pervert, I mean I’m just exaggerating for effect, then surely that is something that must be asked.”
When it was pointed out to Mpofu that Malema had stated as a fact, without any supporting evidence, that the alleged sexual harassment was “actually happening to women who want to be acting judges, for them to get access to act, they get to be subjected to all those manner of things”, Mpofu said he couldn’t “answer for that”.
Malema had later stated, again without providing any evidence, that Mlambo was accused of demanding sexual favours in exchange for aspirant women judges to be able to act on the Bench.
Mlambo had responded that any suggestion that this was true was “an insult to me” and to the many women judges who had acted at his court “to spread a rumour of this nature, there is completely no substance to that rumour”. He also stated that he first became aware of the sexual harassment rumours about him after he was put forward as a Chief Justice nominee – and regarded it as an attempt to poison his candidature.
But Mpofu and Malema’s apparent efforts to taint Mlambo did not end there.
During Zondo’s interview on Friday, Malema and Mpofu appeared to be intent on casting an even greater pall over Mlambo’s candidature by suggesting that his acting appointment to the Constitutional Court was abnormal and, according to Mpofu, unlawful.slide 1 of 1Dali MpofuGallo ImagesGallo Images
This was after it emerged that Justice Minister Ronald Lamola had written to Zondo in the first part of last year – before Mlambo was nominated as a potential Chief Justice – and suggested that the Judge President be appointed in an acting capacity at the apex court.
While Mpofu insisted that this may amount to “the worst form of judicial capture”, Lamola’s office slammed this claim as “a deliberate distortion” and pointed out that Lamola was constitutionally entitled to engage with Zondo on acting appointments.
Madonsela said the accusations against Lamola were legally ill-founded and out of line.
She said:The Constitution gives the Minister of Justice the responsibility to recommend acting judges of the Constitutional Court. [It] further places a responsibility to exercise this power with the concurrence of the Chief Justice.
“To make it appear that it is criminal or sinister for the minister to recommend someone or persons to the Chief Justice is bizarre.”
She also rubbished Mpofu’s argument that, because Zondo had already suggested possible judges to serve in an acting position at the Constitutional Court, there was no longer a vacancy there – and Lamola’s suggestion of Mlambo, who Mogoeng Mogoeng and Zondo had already identified as a possible acting justice, was unlawful.
“If the minister was meant to be merely a conduit to convey the wishes of the Chief Justice to the president, the Constitution would have said so.”