Deputy chief justice Mandisa Maya on Tuesday proposed an amendment to the constitution to deal with the crippling workload at the Constitutional Court, suggesting that its justices work in panels of three or five — instead of all of them having to decide every case, as they do now.
Maya was being interviewed for the position of chief justice — the head of the whole of the judiciary and the highest judicial post in South Africa. If appointed, she would be the first woman to hold this position in South Africa’s history. At the end of the day's interviews the JSC announced it had resolved to advise President Cyril Ramaphosa that she was “suitable for appointment”.
In terms of the constitution, the president appoints the chief justice after consulting the JSC and the political parties represented in parliament — this means he must consult them as a procedural step, but ultimately the decision is his to make.
This was the second time Maya had been nominated for chief justice, but in this round she is the only candidate, making it almost a certainty that she would get the nod.
Still, it was a more subdued Maya who appeared before the JSC this time; and a self-confessedly more “sober” one. Between her last interview in 2022 and Tuesday’s interview, she had been appointed to the Constitutional Court as deputy chief justice. She had got a taste of what the role of chief justice entailed, she said.
“And I must say it has been a sobering experience.”
She joked that she had told chief justice Raymond Zondo a few days earlier: “There is absolutely nothing attractive about your job, chief justice. If I had a way, I would go and a hide in a hole somewhere.”
However, Maya said she was confident she could do the job, with the support of her colleagues.
The chief justice is the head of the Constitutional Court as well as the judiciary as a whole. He or she chairs the Heads of Court body, the National Efficiency Enhancement Committee (a stakeholder liaison committee), the Judicial Conduct Committee (which is also drowning in work, the JSC heard on Tuesday) and the Judicial Service Commission — among other roles.
The workload at the ConCourt has come under the spotlight because of increased criticism at the turnaround times for the delivery of judgments at the apex court. An initiative to bring in retired justices to assist with applications for leave to appeal — the bulk of the ConCourt’s work burden — was abandoned after an outcry by legal organisations.
Maya told the JSC about the “rude awakening” she got when she arrived at the Constitutional Court at the workload the judges faced.
“I have never worked as hard in my entire life than I have worked in the last 20 months. That court is extremely, extremely busy.”
Earlier, at the start of her interview, Maya said she didn’t think a judge of the ConCourt had had a full night’s sleep in the last three weeks.
She said sometimes the Constitutional Court was criticised for its slow delivery of judgments, with critics saying there were only about 400 new applications a year and that the court did not set down more than 40 of these for hearing.
“But this number is huge when you consider the fact that we sit en banc,” she said. Added to that was the weight of their judgments being the last word on any case, she said.
Later, when she was setting out her vision for her judiciary, she proposed that the constitution be amended so that applications for leave to appeal could be decided by panels, perhaps of three judges. And that some appeals could also be heard by panels — perhaps of five judges, she suggested.
“That would make a huge positive difference,” she said.
In the meantime, she suggested that the justices meet directly after a hearing, instead of waiting for a post-hearing note from one of the justices; that panels of experienced senior lawyers be employed to assist with processing applications for leave to appeal; stricter time frames be implemented; and that the number of justices of the ConCourt be increased, saying the court could now accommodate up to 15 judges.
Questioned further by Zondo, Maya said where the cases involved “matters of national importance”, these could still be heard by the full 11 justices of the apex court, with a sifting mechanism earlier on in the process. However, later in her interview, she said her proposed mechanics of how the panels would work were suggestions and were open to debate.
The JSC also announced that after interviewing Supreme Court of Appeal justice Dumisani Zondi for deputy president of the SCA on Tuesday afternoon, it had resolved to advise Ramaphosa that Zondi was “suitable for appointment” to that post.
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