WRAP | JSC recommends SCA president Judge Mandisa Maya as next Chief Justice of South Africa

Dali Mpofu confirms to News24 that Maya was chosen according to a majority vote.

- Karyn Maughan 

Mpofu says "no" to a question whether the JSC is concerned that the nomination could be considered controversial given that unsubstantiated allegations of sexual harassment was made (by Mpofu) against Judge President Dunstan Mlambo.

- Pieter Du Toit

JSC spokesperson Doris Tshepe, one of the president's four representatives on the JSC, says a report on the interview process will be sent to the president.

- Pieter Du Toit

He adds a letter sent by Associate Professor of Law at Rhodes University, Helen Kruus, objecting to the process and warning that it could be invalidated because of the nature of the interviews "is insignificant".

- Pieter Du Toit

"The president is clearly not bound by what the JSC or political parties recommend," Mpofu says. According to the Constitution, the president should appoint a suitable Chief Justice after consultation with the JSC and political parties in the National Assembly.

- Pieter Du Toit

Mpofu says the JSC has come to the decision to recommend SCA president Judge Mandisa Maya as the next Chief Justice.

- Karyn Maughan 

Advocate Dali Mpofu says he will read a short statement.

- Karyn Maughan 

Initially, this briefing was expected to take place at 13:00. The fact that it's only taking place now indicates that there may have been some fierce debate during these deliberations.

- Karyn Maughan 

This is the first time in South African history that the JSC has interviewed four candidates for the Chief Justice vacancy. At the moment, it is unclear whether the JSC will identify one or more preferred candidates for the position. Ultimately, the power to choose the Chief Justice lies in the hands of President Cyril Ramaphosa.

- Karyn Maughan 

We are waiting for JSC spokespersons Dali Mpofu and Doris Tshepe to address the media after an eight-hour deliberation process about the four Chief Justice nominees: Acting Chief Justice Raymond Zondo, SCA President Mandisa Maya, Justice Mbuyiseli Madlanga and Gauteng Judge President Dunstan Mlambo.

- Karyn Maughan 

Petse says the content of the complaint letter was not meant for public consumption - and says it should be "expunged" from the record. The JSC will deliberate from 09:00 on Saturday.

- Karyn Maughan

Advocate Dali Mpofu argues that the letter that was read out "must be expunged". He adds that this is because "some of us...have been abused...for the whole week".

- Karyn Maughan

In yet another embarrassing development, Petse accidentally reads a letter of complaint - written by  Rhodes University professor Helen Krause - which complaints about the "sexist nature of the questions" posed to President Maya and the unsubstantiated sexual harassment questions posed to Judge President Mlambo.

While the questions to Mlambo had been struck from the record, Krause said she "believed the damage has already been done". She urged Petse to consider starting the CJ interview process "de nove" [afresh] "with an admonishing the commissioners treat the candidates fairly an/or implicated commissioner are to step down".

If this does not happen, the professor contends that the entire CJ process could be set aside by a court of law. Petse did not realise that the cameras were still on when he read the letter. Commissioners are outraged - and deeply unhappy about the criticism they have received from retired Justice Johan Kriegler and what commissioner Notyesi describes as "wrong reporting" on their questions of candidates.

- Karyn Maughan

COMMENT | This is truly extraordinary. Lamola accuses Malema of telling a "blue-faced lie" when he starts discussing the circumstances under which Mlambo was given an acting appointment at the ConCourt. Malema and Mpofu are both trying to suggest that Lamola acted unlawfully when he suggested Mlambo receive an acting appointment - with Malema contending that Lamola had tried to manipulate Zondo into doing this. That comment sent Lamola over the edge and Malema responded by screaming back at him. This is absolutely unheard of - and even Commissioner Xaba is already raising concerns that this debacle will fuel litigation.

- Karyn Maughan

All hell breaking loose.
Lamola subsequently withdraws his accusation that Malema is lying and says he is “out of order”.
This is all in relation to Mlambo’s acting appointment at the ConCourt. pic.twitter.com/CCOIw305ej

— Karyn Maughan (@karynmaughan) February 4, 2022

Mpofu now argues that Lamola's intervention was unlawful, as the minister was not filling a vacancy. Lamola disagrees - and says there were two vacancies at the time that he and Zondo were exchanging letters about the acting appointments. Mlambo's name was also put forward before he was nominated as a Chief Justice candidate.

- Karyn Maughan

30 April 2021: CJ Mogoeng recommends Deputy Judge President Mdondo and Judge Owen Rogers to act at the ConCourt in June that year, minister responded and suggested that Mlambo be appointed as an acting judge. In July, Zondo responds and says it is too late. In November 2021, Zondo writes to Lamola to make a recommendation that Mlambo and Unterhalter be appointed in acting positions. Zondo says this process was not the norm but does not say it was unlawful.

- Karyn Maughan

COMMENT | Another thing: questions are completely dominated by those in the EFF orbit. The line of attack (and that's what it is) is the same, and the air of superiority is the same. What happened to other MP's like the DA's Glynnis Breytenbach or the IFP's Narend Singh? It seems like they abdicated their responsibility to try and bring a semblance of proper process to proceedings, leaving the floor open. The same goes for Advocate Jenny Cane SC, like Mpofu a representative of the advocates' profession. Nary a peep from any of them.

- Pieter du Toit

COMMENT | It's remarkable to what degree the JSC's agenda is driven by the EFF's Malema and Mpofu. They are clearly the most influential on the panel, and other commissioners - including the ANC's Bulelani Magwanishe and Cyril Xaba, as well as Eastern Cape lawyer Mvuso Notyesi - are almost constantly in Malema and Mpofu's orbit. They sit together at lunch where they dine and laugh together. It's Malema's show, with Mpofu dutifully serving as his second, and the rest - like Advocate Griffiths Madonsela - just take their line from the EFF duo.

- Pieter du Toit

Dodovu again revives the debate on Mlambo's acting ConCourt appointment. Zondo has said that Lamola's letter asking him to appoint Mlambo in an acting capacity was "not normal" - but stresses that he was not saying that it was unlawful.

- Karyn Maughan

Malema asks Zondo how his appointment will help the transformation of the judiciary. Zondo says he is here because he was short-listed by President Ramaphosa.

- Karyn Maughan

Malema is pushing Zondo for details about why Zuma asked to meet him in a hotel. Zondo says he cannot remember what was discussed at the meeting. Malema is now launching a full-scale attack on Zondo, who he suggests has interacted inappropriately with politicians. Despite the fact that the State Capture Inquiry was presidentially appointed, Malema has also sought to impugn Zondo's meetings with President Cyril Ramaphosa.

- Karyn Maughan

COMMENT | Malema, the EFF leader and former leader of the ANC Youth League, maintains an antagonistic approach to interviewing Zondo. He is not interested in questions of law, judicial philosophy or a society based on the rule of law. For Malema, it's all about politicking and grandstanding. It's all about big man politics. It's about taking out political opponents, and judges and the judiciary is his biggest enemy. It is tragic that he has a platform from which to harass and harangue judges. He is a danger to democracy. The president will be well advised to disregard the whole of the JSC process.

- Pieter du Toit

Zondo confirms that he went to see former president Zuma, who he said he knew, some 20 years ago and cannot remember the exact details of that meeting. Zondo confirms that he later met with Zuma at his Forest Townhouse - and reveals that the meeting may have been in 2008.

At the time, there had been a media conference where Malema said he would "kill for Zuma". Zondo said he was concerned about this and also extremely worried that Zuma had said nothing about Malema's comments.

He then contacted Zuma and asked to meet with him. Zondo says he told Zuma that a country could be thrown into a lot of violence if leaders did not stop incendiary rhetoric.

Zondo says Zuma told him that he had spoken to Malema. Malema now attacks Zondo for what he described as 'political interference" and argues that Zondo should have disclosed his relationship with the former president. Zondo does not agree - and says he spoke to Zuma as a citizen.

- Karyn Maughan

Malema asks Zondo if he was scared that Fraser "had something" on him - and tries to suggest that there was something untoward in Zondo not subpoenaing him. Zondo denies that the commission's failure to subpoena Fraser was driven by fear.

He adds that he tells anyone that calls him to assume that they are being listened to. Zondo then explains, again, that Fraser came to the commission in June 2020 and says they intended to present evidence. There was no reason to subpoena Fraser at that stage, Zondo says, because he had agreed to give evidence.

The next year, in March 2021, Fraser's legal team brings an application aimed at getting Zondo to order SSA to hand over classified documents. SSA agreed to provide Fraser with the documents but asked him to follow proper processes. Fraser never did this, Zondo says - despite the commission following up on the issue.

- Karyn Maughan

Malema now refers to a letter sent by the Minister to Zondo, where he urged Zondo to appoint Mlambo as an acting justice. Zondo refused to appoint Mlambo at the time but later appointed him to act - alongside Judge David Unterhalter. Zondo declines to say whether the minister's directions to him were legal - but says it was not the norm.

- Karyn Maughan

Asked to respond to a complaint that he is "easily influenced", Zondo starts laughing - and then refers to cases that he contends show his independence.

- Karyn Maughan

The ConCourt heavily criticised the State Capture Inquiry for not subpoenaing Zuma as early as July 2019 and suggested that it had bent over backwards to accommodate the former president. Zondo now reveals that this treatment was driven by his concern that Zuma would take the commission to court if it did not treat him fairly.

- Karyn Maughan

Zondo says he "can live with the fact' that ConCourt criticised his handling of former president Zuma's appearance at the commission, and he is "happy" that the "court never found that I had treated him unfairly".

He says the consequences of a court finding that he had treated Zuma unfairly would have been devastating to the inquiry.

- Karyn Maughan

Commissioner Doris Tshepe questions whether Zondo has considered putting targets in place to evaluate how the judiciary's transformation project has progressed - particularly in regards to women. Zondo acknowledges that the judiciary has not reached its objectives in relation to gender transformation. He says maternity leave for women judges can be granted through the special leave process. Any judge accused of sexual harassment would be hauled before the JSC's Judicial Conduct Committee, he says.

- Karyn Maughan

Madonsela is trying to suggest that, because Zondo will face litigation over the State Capture Inquiry reports and will be the target of an attack, he is a less desirable Chief Justice choice. Zondo says that stance sends a very damaging message to judges about the career-inhibiting implications of chairing commissions.

- Karyn Maughan

Advocate Madonsela is now trying to revive former president Zuma's argument that the contempt ruling given against him was unfair because the ConCourt decided it as a court of first and last instance. In a highly patronising and irresponsible line of argument, Madonsela suggests that the ConCourt justices would not have gone against the State Capture Inquiry's application because doing so would result in them ruling against their boss. Zondo points out - yet again - that the ConCourt had been highly critical of the Inquiry in the Zuma matter.

- Karyn Maughan

COMMENT | Not only that, Karyn, there are commissioners here - who have the responsibility and privilege of questioning candidates for the bench - who openly attack judges and actively undermine the judiciary! Some of them really don't care a lot about the supremacy of the law.

- Pieter du Toit

COMMENT | I absolutely agree with you, Pieter. The JSC has been a massive culprit in the undermining of the legitimacy of the judiciary - both because of its failure to hold judges properly and swiftly accountable for misconduct and also for its anti-intellectual bias in judicial appointments. The JSC has essentially become a highly politicised vehicle for score-settling against judges who make rulings against those aligned to former president Jacob Zuma and the EFF. But its worst offending members seek to victim blame the judiciary for damage that they have deliberately caused.

- Karyn Maughan

COMMENT | China Dodovu, an ANC MP and a central figure in ANC factional fights in North West, tells Zondo "people don't trust the courts like they used to" and asks "what do you say?" Remarkable how these commissioners just pluck stuff from the air, without any serious substantiation, and expects the candidate to respond. Poor, poor questions.

- Pieter du Toit