Justice Mandisa Maya on Monday told the Judicial Service Commission (JSC) that writing a judgment in isiXhosa “was about cultural pride … it was about me writing in my language. I don’t see anything wrong with what was done in these cases.”  

Maya made history by writing the first recorded judgment of a superior court in South Africa in isiXhosa.

In February, Maya was interviewed for the position of Chief Justice and the JSC recommended that she be appointed. However, President Cyril Ramaphosa appointed Raymond Zondo to the post and nominated Maya as Deputy Chief Justice. 

Monday’s interview was to determine her suitability for the position.

Maya was grilled by the commissioners about her decision to write the judgment in isiXhosa in a matter where AfriForum took Unisa to court over its new language policy, which discontinued Afrikaans as a language of learning and teaching.

Language matters

Commissioner Monica Leeuw said: “I don’t want you to look at it in a subjective way. When you are appointed in this position, how will you be able to cater for all the official languages?” Leeuw suggested that a sworn translator should be called in to translate judgments into all the official languages. 

“We’re not sure if you wrote exactly what your colleagues said. If you were doing it for yourself, my view is it would’ve been better if it catered for all the languages. Is that what you intend on implementing?” said Leeuw. 

Maya said that the Constitutional Court had regularly handed down bilingual judgments and said that Leeuw’s suggestion was a good idea. 

Commissioner Engela Schlemmer said she was concerned that Maya’s answer to Leeuw “gave the impression that you allow personal feelings to come before objective judgement”. 

Maya disputed this, saying she had not explained herself properly. Maya said former JSC member Mathole Motshekga had constantly asked why judges did not do more to promote indigenous languages, so part of the reason she wrote the judgment in isiXhosa was to promote indigenous languages.

“There was an altruistic reason and another lofty ideal I wanted to push.” 

Schlemmer asked Maya, who sits on the JSC as the President of the Supreme Court of Appeal, about the time she had asked a candidate why she wrote a judgment in Afrikaans, “which created the impression that it was wrong to do so. Why did you ask that question?”

Maya said that she would have explained there was concern among presiding judges because the judgment was written only in Afrikaans and a number of judges did not speak the language.

‘Not a serial recuser’

The question of recusal came up in Maya’s interview. If appointed, Maya will chair the Judicial Conduct Committee (JCC). 

Commissioner Glynnis Breytenbach asked how Maya would chair the JCC if she were appointed. “I would have no difficulty chairing the JCC. I’m not a serial recuser,” said Maya.

When John Hlophe, Judge President of the Western Cape Division of the High Court, appeared before the committee, Maya recused herself. 

Maya explained her relationship with Hlophe: “We’re not friends but I have known him for a long time. He was there for me during a difficult time. I’ve had meals at his house when I was in Cape Town … maybe I was overly cautious when it came to his matter. I’ve been a judge for 22 years and I’ve never recused myself. My sense was that the proper thing was to not sit.” 

The role of Deputy Chief Justice

Justice Minister Ronald Lamola asked how Maya understands the role of the Deputy Chief Justice (DCJ) in helping to administer justice. 

“The role of the Deputy Chief Justice is delineated in the Superior Courts Act … It says the Deputy Chief Justice will exercise powers and functions that the Chief Justice delegates,” said Maya.  

Writing on the role of the Deputy Chief Justice, Mbekezeli Benjamin and Vuyani Ndzishe wrote: “The DCJ is also responsible for presiding over hearings in the Constitutional Court in the absence of the CJ. On this score, Maya will draw on her many years of presiding over the appeal Benches of the SCA, her experience of acting in the apex court, plus the fact that the majority of the current ConCourt justices are her former SCA colleagues. 

“We know that over the next few months, [Judge] Zondo will still be preoccupied with work outside of the ConCourt, so Maya will be called up to preside at ConCourt hearings sooner rather than later.” 

After a four-hour interview, the JSC announced they would advise the President to appoint Maya as the Deputy Chief Justice, which would make her the first woman to occupy the role. DM