Johannesburg Bar Council, Submission on short listed candidates to be interviewed for appointment to the Constitutional Court, submitted by the GCB to the JSC, May 30 2012

APPLICANT: JUDGE MANDISA MURIEL LINDELWA MAYA

1 The candidate's appropriate qualifications

1.1 The candidate has obtained the following degrees:

1.1.1 BProc from the University of Transkei, 1986;

1.1.2 LLB from the University of Natal, Durban, 1988; and

1.1.3 LLM (Labour Law: Alternative Dispute Resolution and Constitutional Law) on a Fuibright Scholarship, from Duke University School of Law, North Carolina, USA, in 1990.

1.2 The candidate is appropriately qualified.

2 Whether the candidate is a fit and proper person

2.1 There is nothing in the application or judgments that would suggest that the candidate is not a fit and proper person.

3 Whether the candidate's appointment would help to reflect the racial and gender composition of South Africa

3.1 The candidate is a black woman.

3.2 The Constitutional Court presently comprises 10 members: 3 white men, 2 black women and 5 black men.

3.3 The fact that only 2 women currently sit on the Constitutional Court is a matter of concern. This is especially problematic, given that there were two women appointed to the Constitutional Court at its birth, and at one point, three women justices were members of the Court. Thus no progress on gender transformation has been made in relation to this Court.

3.4 The appointment of the candidate would be a critical step in beginning to redress this position, especially given that she is an outstanding candidate of solid professional, academic experience and ability who would be a valued addition to the Constitutional Court bench.

3.5 This must be considered together with the other possible contributions the candidate would make if appointed.

4 The candidate's knowledge of the law, including constitutional law

4.1 The candidate has 114 High Court judgments that are reported either in the recognised law reports (9 are reported in the SACR; the SALR or the All SA Reports), or are available on Juta (JOL) or LexisNexis (JDR).

4.2 She has five such judgments in the Labour Court, of which 4 are reported in the BLLR.

4.3 She has 43 reported judgments in the SCA.

4.4 From this considerable pool of judgments, we have considered those that have been identified by the candidate in her application, or her nominators, to be most significant.

4.5 The candidate's judgments span a range of legal issues, many of which have been complex and many of which involve the impact of the Constitution.

4.6 For example:

4.6.1 In Minister of Safety and Security v F [20111 ZASCA 3 (22 February 2011), the court had to determine whether the State could be held vicariously liable for the rape, by an off-duty police officer, of a minor.

4.6.1.1 The police officer had offered the girl a lift in his unmarked police vehicle while he was on call, where after he raped her. This case raised complex issues regarding the application of the principles of vicarious liability in light of the Constitution, and required a detailed analysis of established, and new, jurisprudence. It required the court to consider the role that trust in the police plays in the context of the principle of vicarious liability. The complexity of the issues raised is demonstrated by the fact that there was a 3:2 split in the decision of the SCA, with the candidate writing the dissenting judgment.

4.6.1.2 When the matter was heard in the Constitutional Court in F v Minister of Safety and Security & Another 2012 (1) SA 536 (CC), the court ruled by a majority of 8 to 2 that the approach adopted and conclusion reached by the candidate was correct.

4.6.2 In Ford v Ford 2006 (3) SA 42 (SCA), the candidate wrote the judgment for the court in a case that required a balance to be struck between the various competing interests in determining whether a mother ought to be allowed to relocate to the United Kingdom and to take her minor daughter with her in circumstances where her ex-husband shared custody of the child. The judgment weighs all of the relevant principles involved, as well as the views of the experts who gave evidence for the parties, and the views of the affected child. The judgment displays a balanced approach towards all parties concerned, and demonstrates good use of case law, both domestic and foreign, in reaching a conclusion that avoided the emotional pitfalls that often beset such cases.

4.6.3 In S v WN, the Supreme Court of Appeal considered an appeal by an accused who had been convicted of raping his friend at a time when they were both 17 years old. He was sentenced to imprisonment. The court considered his appeal against his sentence. The accused contended that a sentence of correctional supervision was a more appropriate sentence. Each of the three judges hearing the appeal wrote separate judgments.

4.6.3.1 The candidate rejected the contention that the accused should be sentenced to correctional supervision, and upheld the original prison sentence of an effective period of 6 years imprisonment. In her judgment, the candidate recognised that this was a robust punishment, but felt that this was appropriate, given the gravity of the offence (the victim had been severely affected by her rape) and the need to send a strong deterrent message regarding the repugnancy of rape. Her judgment is again well-researched, and demonstrates an ability successfully to weigh the competing interests of a young offender, with the gravity and prevalence of rape as a crime that is endemic in South Africa.

4.6.3.2 Cameron JA dissented, but only insofar as he felt it necessary to give greater recognition to youth in the sentencing process. He preferred a sentence of 5 years effective imprisonment.

4.6.4 S v Bogaards dealt with the legal lacuna created by the repeal of the old Internal Security Act, and acts of terrorism committed during its tenure. The case arose when the alleged terror offenders were harboured by the accused in the case, the Bogaards, after that Act's repeal. The question was what offences could the Bogaards be convicted of, bearing in mind that the replacement Terrorism Act did not establish a specific offence in this regard?

4.6.4.1 The complexity of the legal issues involved is demonstrated by the fact that there were 4 separate judgments from the Supreme Court of Appeal bench of 5 judges.

4.6.4.2 The candidate's judgment was the only one to attract a concurral (from Mhlantla JA). Mthiyane JA concurred with the result of the candidate's judgment, but for different reasons. Seriti JA dissented.

4.6.4.3 The candidate's judgment involves a full and careful examination of all relevant issues. It demonstrates a legally sound, and at the same time, common-sense approach to the issues. She concludes by finding that on the basis of applicable principles, the Bogaards could not be found guilty of any of the offences specified in the Terrorism Act. However, they could be charged and found guilty of offences under the Correctional Services Act in that the alleged terrorism offenders had escaped from custody at the time that the Bogaards gave them shelter.

4.6.5 Commissioner, South African Revenue Service v Sprigg Investment 117 CC 1/a Global Investment 2011 (4) SA 551 (SCA) was a case about income tax assessments and what reasons a taxpayer was entitled to obtain from SARS. The candidate's judgment balanced carefully the competing considerations of the need to provide taxpayers with proper reasons so that they could exercise their rights to just administrative action, but also the need to avoid making reason-giving so onerous that government departments were unduly burdened.

4.6.6 Kini Bay Village Association v Nelson Mandela Metropolitan Municipality & Others 2009 (2) SA 166 (SCA) concerned the question of security for costs in constitutional litigation. The candidate held that, in line with the approach of the Constitutional Court, the general rule was that costs were not awarded against unsuccessful parties in constitutional litigation. However, she held that the present case was an exception because it involved wealthy property-owners seeking to shelter behind an association that they founded and paid for, in order to avoid costs being recovered by the Municipality.

4.6.7 City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd 2010 (3) SA 589 (SCA) concerned a challenge to a law allowing regional services levies to be imposed. The candidate dismissed the challenge. The judgment deals with a range of technical issues concerning constitutional and administrative law: whether the making of regulations amounts to administrative action; under what circumstances a party may launch a collateral challenge to the validity of administrative action or legislation; and the requirement of joinder in such cases.

4.7 These decisions demonstrate the candidate's excellent grasp of constitutional issues both in relation to technical concerns and Bill of Rights issues. In particular, her judgments demonstrate a consistent understanding of the need to balance the enforcement of constitutional rights against the need for government to be able to perform its functions efficiently.

4.8 Moreover, the candidate has a finely developed sense of the need to deal with social issues that disproportionately affect women and children, such as rape and sexual assault. Her judgments at the same time indicate that she is acutely aware of the need to balance all interests involved, including those who are found guilty of such crimes.

4.9 In short, it is clear the candidate has an excellent legal mind and a very well developed knowledge of the law, including constitutional law. She has a fine grasp of the law across a broad spectrum.

5 The candidate's commitment to the values of the Constitution

5.1 The candidate holds a LLM in Constitutional Law from Duke University in the United States. She therefore has an academic understanding of Constitutional Law that is clear in those of her judgments which deal with this area of law. She has also presented papers on the international platform on a variety of issues, including the impact of the Constitution on children's rights. (Chief Justices of the World 12th Conference, New Delhi, Lucknow, India in December 2011.)

5.2 Although the candidate has not yet delivered judgments during her brief acting stint in the Constitutional Court, many of her judgments in the Supreme Court of Appeal have involved constitutional issues directly or indirectly. Even in cases where the Constitution is not centre-stage, her judgments demonstrate a keen sense of the role played by the Constitution in most legal disputes. Furthermore, as the cases examined above indicate, the candidate has a good appreciation of the need for judges to ensure that constitutional values are applied appropriately within the complex social context in which legal disputes invariably arise. Her judgments show that she is well attuned to the role of law (including customary law) and the Constitution in balancing competing social interests.

5.3 One such example is Bothma v Els & Others 2010 (2) SA 622 (CC) at para 44 where the Constitutional Court cited the candidate's decision in Zanner v Director of Public Prosecutions 2006 (2) SACR 45 (SCA) at para 10 with approval.

5.3.1 In Zanner, the candidate, writing for the majority, highlighted the importance of the nature of a crime in the balancing enquiry. The majority of the Supreme Court of Appeal refused to grant a permanent stay of prosecution to a person accused of murder some ten years earlier. The charge had been withdrawn, but when he was later accused of a second murder, the charge was reinstated along with the new charge. The accused applied for a permanent stay of prosecution on the grounds that the time delay had resulted in witnesses being unavailable and their memories of the events concerned having faded.

5.3.2 The court held that, although the time period was central to the enquiry of whether it was unreasonable, the fact of a long delay cannot of itself be regarded as an infringement of the right to a fair trial but must be considered in the circumstances of each case. The accused must show "definite and not speculative prejudice" and, in the absence of this, the trial court would have to consider any prejudice in adjudicating the case. The court concluded that the accused had failed to demonstrate irreparable trial prejudice. The judgment then went on to highlight the importance of the nature of the crime.

5.4 Given her expertise as a judge, including on constitutional issues, the candidate's acting appointment at the Constitutional Court, from February-May 2012 was widely welcomed by the Johannesburg Bar.

6 Whether any judgments have been overturned on appeal

6.1 The candidate lists two judgments overturned on appeal in her application:

6.1.1 Gumbi v Old Mutual (unreported): overturned in Old Mutual v Gumbi 2007 (5) SA 552 (SCA). Although the candidate indicates that her judgment was that of the Full Court, it appears from the Supreme Court of Appeal judgment, that there was in fact a split decision. The candidate wrote the majority judgment that was overturned on appeal to the SCA. The Supreme Court of Appeal preferred the dissenting view of Somyalo JP in upholding the appeal. It appears that the case ultimately turned on the weighing of various facts and the application of these facts to the principles.

6.1.2 Staiwo (Pty,) Ltd v Wary Holdings (Pty, Ltd 2008 (1) SA 654 (SCA): overturned in Waiy Holdings (Ply) Lid v Staiwo (Ply) Ltd 2009 (1) SA 337 (CC). We point out that, although the judgment was overturned on appeal, the Constitutional Court itself split 7 to 3. The case involved difficult interpretational issues regarding transitional provisions in the legislative framework governing municipalities.

7 The extent and breadth of the candidate's professional experience

7.1 The candidate's CV reveals that she has had the following experience:

7.1.1 Policy Counsel and Lobbyist for the Women's Legal Defence Fund, in Washington DC, USA in 1990-1991;

7.1.2 Assistant Law Advisor for the Department of Justice, April 1991 to August 1993;

7.1.3 Practising Advocate, Transkei Society of Advocates,

1994-1999;

7.1.4 Part time Law Lecturer, University of the Transkei

1992, 1993 and 1995;

7.1.5 Acting Judge, Cape High Court July to September 1999;

7.1.6 High Court Judge, Transkei Division 2000-2004;

7.1.7 Acting Judge Labour Court, Johannesburg, Fourth Term, 2004;

7.1.8 Acting Judge of Appeal, Supreme Court of Appeal February 2005 to May 2006;

7.1.9 Judge of Appeal, SCA, June 2006 to the present; and

7.1.10 Acting Judge Constitutional Court, February to May 2012.

8 The candidate's linguistic and communication skills

8.1 From a reading of her judgments, the candidate demonstrates a high level of linguistic and communication skills. Her judgments are well written, well researched, and well reasoned.

9 The candidate's ability to produce judgments promptly

9.1 No adverse comments have been received.

10 The candidate's fairness and impartiality

10.1 The candidate's judgments indicate a well-balanced, fair and impartial approach to the issues and the parties before her.

11 The candidate's independent mindedness

11.1 The candidate appears to be an independent judge.

11.2 She has dissented on occasion, in important, difficult judgments, for example, in the F judgment referred to above.

In that case, her minority dissenting judgment was upheld on appeal to the Constitutional Court.

11.3 Another example of a dissenting judgments by the candidate is Spearhead Property Holdings v E&D Motors ‘Fty,) Ltd 2012(2) SA 1 (SCA).

11.4 The candidate has also written several separate concurring judgments.

12 The candidate's ability to conduct court proceedings

12.1 There do not appear to be any concerns in this regard from the judgments considered or from the papers filed in support of the application.

12.2 No adverse comments have been received.

13 The candidate's administrative ability

13.1 There is nothing to indicate that the candidate lacks administrative ability. It does, however, appear that she has not had much opportunity to demonstrate this ability.

14 The candidate's reputation for integrity and ethical behaviour

14.1 There do not appear to be any issues for concern in this regard.

14.2 It is clear from the candidate's application form, as well as from the letters in support of her nomination, that she is generally held in high esteem and regarded as a role model. This implies that she has a reputation as someone who is regarded as being ethical and of integrity.

15 The candidate's judicial temperament

15.1 No adverse comments have been received.

16 The candidate's commitment to human rights, and experience with regard to the values and needs of the community

16.1 From many of the candidate's judgments it is evident that she has a strong commitment to human rights and to ensuring that law plays an effective role in society. This is especially so as regards the need to protect vulnerable members of society.

16.2 Her application form indicates that she is involved in community affairs through, for example, her involvement in the Transkei Women Zenzele Association, and the Women's Economic Advancement Group (Pty) Ltd. She was also a founding member of the South African Chapter of the International Association of Women Judges, and is a member of the Advisory Board of the Walter Sisulu University Law Journal.

16.3 The candidate has been honoured as the South African Women Lawyers Icon 2012, demonstrating her recognition, by the legal community, of her stature.

16.4 The nomination letter from the South African Chapter of the International Association of Women Judges refers specifically to the candidate's role in giving guidance and assistance to fellow members of the judiciary and lawyers who aspire to become judges.

17 The candidate's potential

17.1 The candidate has demonstrated during her many years as a judge, that she is a diligent, hard working and committed judge, with a sound work ethic and a commitment to the transformation of the legal system, with particular concern for the most vulnerable in our society. That the candidate would be a good appointment is evidenced by the fact that her application is supported by the Women's Legal Centre, the South African Chapter of the International Association of Women Judge, the South African Women Lawyers Association and the University of Cape Town Gender, Health and Justice Research Unit.

18 The message that the candidate's appointment would send to the community at large

18.1 The appointment of a black woman judge of the calibre of the candidate will send a powerful and positive message that transformation (in terms of gender and race) can be successfully married with pure merit in appointing judges to the Constitutional Court.

18.2 In our view, this is an important message at this time, particularly in view of more recently expressed criticism of appointments to the Constitutional Court.

18.3 The appointment of another woman to the Constitutional Court would ensure an appropriate redressing of gender imbalances in that court.

ANNEXURE: LIST OF JUDGMENTS CONSIDERED

Reported decisions

Wormald NO & Others v Kambule 2006 (3) SA (SCA)

MEC for Roads and Public Works, Eastern Cape & Another v Intertrade Two (Ply) 2006 (5) SA 1 (SCA)

( Lebowa Platinum Mines (Ply) Ltd v Vilfoen 2009 (3) SA 511 (SCA)

Camps Bay Ratepayers' and Resident's Association v Harrison [210] 2 All SA 519 (SCA)

Minister of Safety and Security v F 2011(3) SA 487 (SCA)

Spearhead Property Holdings v E&D Motors (Ply) Ltd 2012(2) SA 1 (SCA).

Staiwo (Pry) Ltd v Wary Holdings (Pry) Ltd 2008 (1) SA 654 (SCA) ( commissioner, South African Revenue Service v Sprigg Investment 117 CC I/a Global Investment 2011(4) SA 551 (SCA)

Kini Bay Village Association v Nelson Mandela Metropolitan Municipality & Others 2009 (2) SA 166 (SCA)

City of Tshwane Metropolitan Municipality v Cable City (Ply,) Ltd 2010 (3) SA 589 (SCA)

Judgments Upheld on Appeal

Minister of Safety and Security v F [2011] ZASCA 3 (22 February 2011)

Judgments overturned on Appeal

Gumbi v Old Mutual (unreported)

Staiwo (Fty) Ltd v Waty Holdings (‘Ply,) Ltd 2008 (1) SA 654 (SCA)

Transcribed from PDF. As such there may be small errors in the text. Please check against the original.

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