Will South Africa install its first female Chief Justice?

In early February, South Africa’s Judicial Services Commission (JSC) interviewed four nominees for the post of Chief Justice, which became vacant upon the retirement of the incumbent, Justice Mogoeng Mogoeng (2011 - 2021) in October last year.

Of the four interviewees - three men, including Deputy Chief Justice (DCJ) Raymond Zondo (who serves as Acting Chief Justice), and one woman - the JSC recommended Justice Mandisa Maya, the current President of the Supreme Court of Appeal (SCA) as the most suitable candidate to sit at the apex of the country’s judiciary.

If President Cyril Ramaphosa adheres to the recommendations of the JSC and appoint Maya, she would become the first woman to assume the position in South Africa’s history. If appointed, Maya (58) would serve a full non-renewable 12-year term whose end would coincide with the 70-year age limit for all judges in South Africa.

Is South Africa Ready For Female Chief Justice?

This question appeared to irritate Maya (and many others) when it was posed to her while she appeared before the JSC interviewing panel.

"I do not think it is a proper question to ask because it implies all sorts of negative things," Maya responded. "But the short answer is South Africa has always been ready to have a female Chief Justice at inception… Why are we asking about women as if we are this special group that needs to be done a favour, to keep checking if they are ready?"

Ropafadzo Maphosa, a researcher at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law at the University of Johannesburg was equally upset by the question.

"The fact that most of the questions posed to Judge Maya would never be raised with her male counterparts speaks to a patriarchal line of questioning," Maphosa wrote in an opinion piece. 

"The commission would never attempt to relate the competence of a male candidate to his gender. Whether or not South Africa is ready for a female Chief Justice is an irrelevant consideration," Maphosa  further wrote. "It is truly absurd that a judge’s legal reasoning would be tied to her gender, and yet this is the climate that female judges have to work in." 

A Tough Position Amid Growing Lawlessness

A strong advocate of black empowerment and the uplifting of women, Maya could, if installed, shape the country’s judiciary for the next 12 year - a bench that only a few years ago was all male and white.

This is a powerful position in a country in which the judiciary faces sustained attacks by some former liberators and politicians who consider themselves as being above the law, thus threatening the rule of law.

Maya Capable Of Transforming Judicial Landscape

Professor Omphemetse Sibanda, Executive Dean of the Faculty of Management and Law at the University of Limpopo, said Maya’s appointment as Chief Justice would mean much more to South Africans than merely a replacement of men by a woman. 

"Her appointment from the perspective of the judicial landscape would mean a lot of things, including strong leadership in the Office of the Chief Justice (OCJ) […] Maya has competencies to ensure that the OCJ discharges its obligation," Professor Sibanda said in written responses to FairPlanet. "Her distinguished leadership of the SCA, which was the highest court in South Africa before the establishment of the Constitutional Court during the dawn of democracy, is an assurance to the judicial landscape that as Chief Justice she can properly execute her mandate as both the head of the Constitutional Court (ConCourt) and the head of the Judiciary. Also, there will be improved organisational governance and accountability in the Judiciary."

He added that with Maya at the helm, the future of the ConCourt and South African life would be safe. 

"Her consciousness and appreciation of rights and freedoms as a jurist means that the legal landscape will, under her leadership as head of the Judiciary, turn the corner and give primacy of focus on what matters most to law and order."

Prof Sibanda further added that to the ordinary South African, there would be an ideological tilt with regard to adjudicating issues affecting women, children and marginalised members of society, without undue influence of politics. 

"The judicial space will, for the first time from time immemorial, have as a Chief Justice a good judge who is a woman to forge a new place for women in the law and society. She has proven this as the President of the South African Chapter of the International Association of Women Judges. Having regard to renowned women judges around the world, Justice Maya will, like judges such as the late Ruth Bader Ginsberg, bring lasting legitimacy on the bench and perhaps change the masculine view of the world."

Others root for Zondo

Since the JC’s post fell vacant last year, there was no shortage of people campaigning for DCJ Zondo to be selected as head of the judiciary.

Zondo, however, is unpopular among some sections of South African society, especially the faction of the ruling African National Congress (ANC) party, which is aligned with former President Jacob Zuma.

Last year, a bitter stand-off between Zondo and Zuma over the latter’s refusal to appear before a judicial commission probing alleged state capture culminated in the former president being thrown in jail, triggering violent protests that Human Rights Watch say caused at least 330 deaths and over $3.4 billion worth of destruction and loses. 

Molifi Tshabalala, a South African political writer, is one of those who favour Zondo to head the judiciary. He is one of the many people who believe that the South African judiciary is under threat of capture by a faction of the Zuma-aligned ANC. 

"Clearly, South Africa needs a Chief Justice who can demonstrate strong leadership to preserve her judicial independence from centrifugal intra-ANC factionalism, as the narrative is increasingly laying a fertile ground for real judicial capture, especially if the Zuma faction could regain party dominance at its 55th National Conference and the ANC holds on to state power by an outright majority in 2024," Tshabalala wrote in his argument in favour of Zondo.

"By pushing for Zuma’s imprisonment, the DCJ has already demonstrated requisite leadership to preserve judicial independence, which is indispensable to strengthen our constitutional democracy."

Tshabalala, however said in the event that Zondo does not make it, Maya should also be considered.

"As part of breaking the glass ceiling, it would be good to have Maya, who is the youngest of the four candidates, as the first female Chief Justice, not to mention a black one. However, bearing in mind that our judicial independence is at stake, the President should primarily consider her candidacy based on the second and third factors, as this is not necessarily the time to make history."

A Lapdog’s Appointment?

Bongani Nkosi, a lecturer in the Department of Jurisprudence, Legal Pluralism, Criminal and Law Procedure at the University of Limpopo, said Maya’s appointment might herald transformation of the country's apex judiciary. 

"History may note her as the first female Chief Justice much as it has acknowledged her as the first [female] Judge President of the Supreme Court of Appeal,” Nkosi told FairPlanet. 

"In regard to gender, Maya’s appointment may be confirmation that women are fit and proper to hold any position, including being Chief Justice."ewoh

Nkosi added, however, that Maya’s appointment might be viewed as victory for the ANC faction, which is opposed to Zondo, as most of whose members are regulars at the upper courts where they face various allegations of corruption and abuse of power.

From a political perspective, he said, "Maya’s appointment may be viewed as a lapdog’s appointment to serve the interests of Jacob Zuma, Ace Magashule (ANC secretary general), Julius Malema (leader of opposition Economic Freedom Fighters), Dali Mpofu and many politicians who are likely to end up in the ConCourt. Mpofu (a JSC member) masquerades as a politician and lawyer for Zuma."

Tshabalala shares the same fears.

"They [Zuma's faction] also seek access to and control of the Presidency and other equally critical public institutions, such as the Department of Justice and Correctional Services and the Parole Board, to grant themselves paroles, presidential pardons, or remissions of sentences. This, in a nutshell, constitutes the contemporary nature of centrifugal intra-ANC factionalism."

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