PABASA

PAN AFRICAN BAR ASSOCIATION OF SOUTH AFRICA

STATEMENT

PABASA notes the recent recommendation by the Judicial Service Commission (JSC) of Justice Mandisa Maya for the position of Chief Justice of South Africa. We are of the view that Justice Maya is an excellent candidate, with a clear and proven track record of excellence on the Bench and with a commitment to transforming not just our judiciary, but our society.

We believe Justice Maya would make an excellent Chief Justice and express regret that, if she is appointed by the President, the manner in which the recent JSC interviews were conducted threaten to detract from ail that she has to offer, South Africa has the opportunity of appointing not simply the first woman Chief Justice — but a person who is an outstanding jurist and one who could unite the Judiciary in a renewed focus on building the democracy that our Constitution envisages.

However, the starkly gendered manner in which Judge Maya was questioned, and the fact that other commissioners did nothing to note their disapproval of sexual jokes made about a candidate for the highest judicial office, is deeply unfortunate and retards the fight for gender equality in our society.

We recognize and support a highly rigorous and demanding interview process when candidates for judicial office are interviewed, There are good reasons why the Constitution requires the composition of the JSC to include representatives of political parties, the profession, academia and the judiciary.

However, when placed in those positions, we expect at an absolute minimum that all commissioners will preserve and support the integrity of the JSC process which is designed to give legitimacy and credibility to the Judiciary. In this regard, it has long been the practice of the JSC to inform candidates of any negative comments or complaints before they appear before the JSC.

This was patently not done during the interview of Judge President Dunstan Mlambo and instead, in the absence of any complaint or any evidence of sexual harassment, Judge President Miambo was subjected to a protracted attack about whether he sexually harassed members of the profession who wished to serve as acting judges.

The subsequent expungement of that line of questioning did little to redress the damage caused by such questioning. The treatment of Judge President Mlambo in this regard is regrettable and unacceptable, Interview of candidates for judicial office by ambush undermines the integrity of the JSC and weakens our Judiciary.

It is our democracy and the South African people who lose when JSC commissioners fail in their constitutional duty to follow a fair and established process. We join the call by the Black Lawyers Association for the JSC to engage in a process of introspection and an audit of its interview process through the formulation of a Code of Conduct and Guidelines for JSC proceedings.

We also take this opportunity to condemn the recent article by Adriaan Basson, Editor of News24 on 7 February 2022.

Journalists are entitled to criticize and question our institutions and those that serve on them. They are fully entitled to express strong opinions and to question the conduct of legal practitioners and of JSC commissioners. However, there is a stark difference between robust criticism on one hand and name calling and insults on the other — particularly when done in a racist and bigoted manner. That is simply unacceptable.

Every member of society - whether a judge, a JSC commissioner or a journalist- is entitled to have their human dignity respected. That means that their conduct can be criticized robustly but they may not be insulted or treated in a racially demeaning manner.

Referring to a senior Black advocate as a scoundrel or nincompoop is an ad hominem racist and patronizing attack which detracts from the genuine issues of JSC process which merit urgent debate.

We call on Mr Basson and News24 to retract and apologize for these statements.

Statement issued by Nasreen Rajab-Budlender SC, PABASA National Chairperson, and Dumisa Ntsebeza SC, Deputy National Chairperson, 9 February 2022