Mandisa Maya LLM ’90

Deputy Chief Justice of South Africa

In late January, Mandisa Maya, the Deputy Chief Justice of South Africa, celebrated the launch of a new publication that will give women lawyers and judges opportunities to write early in their careers and prepare those who join the country’s  bench to produce high-quality judgments from the outset of their terms. Justice Maya and her team spent four years developing The Journal of the South African Chapter of the International Association of Women Judges and she is its editor-in-chief.

“The journal is owned by women, run entirely by women, and publishes articles written by women,” says Justice Maya, who is also president and a co-founder of the chapter. “We established it primarily to give women lawyers and judges a platform where they can finesse their writing skills so that we can create a pool of women thought leaders who will document their jurisprudential contributions and write also on all the issues that affect women in society.”

It’s an opportunity she would have welcomed before she was appointed as a judge of the superior court for South Africa’s south-central Eastern Cape province in 1999 and began her own pathbreaking career as a jurist. In 2006 she became the first Black woman appointed to the country’s Supreme Court of Appeal (SCA), the highest appellate court of general jurisdiction, and in 2016 she became the first woman to be appointed as that court’s deputy president. A year later, she set another milestone as the first woman to lead the SCA as president, and in 2022 became the highest-ranking woman judge ever in South Africa when she was named deputy chief of the Constitutional Court.

When he appointed her as deputy chief justice, President Cyril Ramaphosa predicted that her position of leadership on the country’s highest court would be inspiring and empowering for women and girls.

“Justice Maya will contribute to the ongoing transformation process of the judiciary,” he said in a statement on July 25. “Her ascendency to the apex court will serve as a beacon of hope for scores of young women and make them believe that South Africa is a country of possibilities, regardless of gender, social, or economic circumstances.”

“Her ascendency to the apex court will serve as a beacon of hope for scores of young women and make them believe that South Africa is a country of possibilities, regardless of gender, social, or economic circumstances.” 

— South African President Cyril Ramaphosa

Diligence, determination, democracy

Justice Maya credits her parents, both teachers, with modeling the values of hard work, honesty, service, and caring for others, as they raised their six children in the rural Eastern Cape in a home filled with love, books, and, frequently, relatives who needed their assistance. “My parents didn’t have much money, but they always made room for those who had less,” she says.

As the eldest, she helped care for her siblings from a young age, but all were expected to help run their home with no separation of labor between boys and girls, she says. Most importantly, they all received a far better education than did most Black children during the racially segregated apartheid era because their parents supplemented it with instruction at home.

Because she excelled in school, Justice Maya seemed headed for a career in medicine — “the best you could be in those days” — which was even predicted by the Anglican bishop in his blessing over her first communion at age 9. When squeamishness ruled that out, law seemed the “next best” career option, she jokes. But there was another reason for its appeal.

“In South Africa in those dark days, lawyers — very few of them women — were crucial in getting some justice for Black people,” she says. “I quite fancied joining the ranks of these heroes, these Black lawyers who were our saviors.”

After completing a four-year undergraduate BProc degree, then a precursor to becoming an attorney, Justice Maya earned her LLB in 1988 at the University of Natal. A part-time job with a local attorney during a law school break led her to set her sights on becoming an advocate — a legal practitioner who is admitted to the Bar and presents cases in court — in spite of the fact that almost all members of the field at the time were white and male. Only one Black woman advocate was then in practice in the Eastern Cape.

“One of my duties was delivering instructions to advocates in their chambers,” she says. “By interacting with them, I got a peek into this rarified world that was sort of closed off to Black lawyers, and it appealed to me.”

“My aim always is — and I make no apologies for this — to set an example that will encourage young women and girls to reach for the stars.”

First, though, she knew she wanted to broaden her education. Encouraged to apply by one of her law professors, Justice Maya secured a Fulbright scholarship to attend Duke, which she selected for its prestige and quiet, green locale, and also for the fact that Lawrence Baxter was then a member of the research faculty. She knew Baxter, who recently retired as the David T. Zhang Professor of the Practice of Law, to be South Africa’s foremost expert on administrative law whose 1984 text remains seminal in the field.

It was an enriching year on many levels, she says, made more so by the support afforded by Judy Horowitz, then the associate dean of International Studies, and Donald Horowitz, the James B. Duke Professor of Law and Political Science Emeritus, who “doted” on the international students who came from all over the world.

“You can imagine a Black South African girl, who’d never been outside the borders of this small country, starting to find herself in this big world,” Justice Maya says. “At Duke I was exposed for the first time to the Socratic method of teaching — we were taught very differently. But I found my rhythm fairly quickly and made friends.” And her Duke experience stood her in good stead when she returned home after working at the Women’s Legal Defense Fund in Washington, D.C.

“When I came back and was applying for teaching and other jobs, everybody wanted to snap me up,” she says. “And I knew that was because I had come from Duke.” She worked at the State Law Adviser’s Office and taught law part-time at the University of Transkei, her undergraduate alma mater, following her return.

By then apartheid was being dismantled and the country was preparing for its first democratic election, slated for April 1994. But rampant violence, including the assassination of anti-apartheid leader Chris Hani, threatened to derail it. “We were on the brink if not in the heart of a civil war,” she says. “There were all sorts of things that were mediating against the attainment of this freedom that we were so excited about.”

Justice Maya signed on as an investigator for the Independent Electoral Commission, charged with investigating, documenting, and sometimes mediating complaints relating to election campaigns. These were primarily allegations that right-wing white farmers were destroying campaign materials from Black political parties like the African National Congress or preventing their workers from joining political organizations and attending campaign events, she says. But even if they had the courage to lay complaints, farmworkers often were reluctant to speak with her and her fellow investigators, for fear of losing their jobs and their homes.

“So it was difficult, but nothing was going to deter us,” she says. “We ended up having peaceful elections — everybody was able to vote for the first time — and it counts among the very best days of our lives.”

An ascendant jurist

But even in the exhilarating aftermath, Justice Maya could not establish a practice in Johannesburg where she did her training because attorneys weren’t willing to direct briefs to a Black, female advocate. “Being a woman at the Bar was and is hard,” she told the member of the Judicial Service Commission during her June interview for her current post. “People who have the work and can brief counsel do not have sufficient confidence in women.”

Even after she relocated to the Eastern Cape she “survived” mainly on briefs sent to her by a friend who was the instructing attorney for her municipality and local bank, while male advocates landed the more lucrative work from banks and government. But the state attorney gradually took note of her courtroom skill, and by 1999 her practice was finally flourishing.

She flatly and repeatedly rejected the invitation to become a judge of the Western Cape High Court when it was extended, feeling that she was too inexperienced and, at 35, too young.

But the judge president of the court was persistent and, eventually, persuasive, impressing on her the importance of having well-qualified women on the bench who believed in the constitution. When she finally agreed, she found that she loved it.

“I enjoyed the intellectual rigor — the art of analyzing legal concepts and trying to balance the competing interests to achieve a fair result for all the parties, even those who lose,” she says. “I found it thrilling.” In Justice Maya’s first term on the bench she got “a huge boost of confidence” when two of her judgments were published in a single volume of reports; she remains one of only two judges to be recognized in that way. And as the mother of two young children — a third would soon follow — she also liked that the job kept her close to home.

The significant record of judgments she amassed over five years on the Eastern Cape High Court earned her an invitation to join the SCA, which she did in 2006, after serving for a year in an acting capacity on the Labour Court. She was one of only three women on what was then a 16-member bench when she joined, and while numbers had improved somewhat by the time she took the helm in 2016, she set improving its gender diversity as a key goal.

“I went about scouring the high courts for possible women candidates and found good women judges,” she says. “I believe that if you look for people, you find them. And if they don’t have the necessary experience, you mentor and assist them.”

Along with a racially diverse cohort of male jurists, six women of color were appointed to the SCA during Justice Maya’s tenure as president of the court; as of late January, 11 out of 23 judges were women, with interviews for vacancies pending, she says. “And we have been able now to establish a steady stream of women candidates for the court.”

Justice Maya says the true test of her presidency came with the COVID-19 lockdown in late March 2020, near the end of her court’s first term. In addition to ensuring that judgments were finalized remotely, she spent the court’s April recess putting together a plan for the term slated to begin May 2, instructing her assistant to research what senior courts in other countries were doing. “I felt that if there was one court in the world that was sitting during that time, so could we,” she says.

Using directives from an appellate court in the United Kingdom as a starting point, Justice Maya secured laptops with webcams for all SCA judges, set up training so that each was capable of presiding over hearings virtually, and got “buy-in” from attorneys who had cases on the docket. Getting colleagues who were dismissive of the effort on board was harder.

“That meeting was the defining moment of my leadership, because I managed to cajole them to try it out on the first day of May and see how things went,” she says. The test case went smoothly, as did the entire term, she reports. “We were able to sit as many as six courtrooms in a day on the virtual platform, whereas the SCA actually only has three [physical] courtrooms. In terms of output, we were the best performing court in the country.”

Leading on language

Another “first” from Justice Maya’s tenure on the SCA was her decision, in 2021, to write an opinion in isiXhosa, her ancestral language, as well as English. While the constitution enjoins the development and protection of all of South Africa’s 11 official languages, only two of them, English and Afrikaans, had ever been used in recorded judgments of the senior courts. She identified a case with official language policy at its core as appropriate for carrying out a long-simmering goal.

Her opinion in AfriForum v. Chairperson of the Council of the University of South Africa took six months to write. Faced with the challenge of crafting legal terms in isiXhosa which, like most other official languages, hadn’t had an opportunity to develop in that context, she eventually engaged the assistance of a professional translator and her deputy. But it was essential to write her initial opinion in isiXhosa, as opposed to just having an English ruling translated, she told the Judicial Service Commission in June, both as a matter of personal cultural pride and constitutional imperative.

When another case came before the SCA that involved parties who spoke another of South Africa’s official languages, she asked a colleague to write it in their language. And her effort has resulted in an invitation from an academic institution to help revive all of South Africa’s languages and bring them into more mainstream use.

“It has started a positive movement, I hope,” Justice Maya says.

Continuing to inspire

As Deputy Chief Justice, her responsibilities, beyond hearing and deciding cases en banc with her colleagues on the Constitutional Court, are statutorily defined as helping the Chief Justice achieve his goals for the court and the South African judiciary. At his behest she now chairs the Judicial Services Commission that oversees judicial appointments, among other duties with which she assists him.

When she was interviewed by the commission prior to her appointment, she was asked how she might use the position to “make women feel the law is working for them” in a country where violence against women is common and often dismissed by authorities. She spoke about the need for standardized training to sensitize all stakeholders in the justice system, including police and judges, on gender-related matters. Any judicial officer “faced with any case that has to do with the violation of girls and women should have the proper understanding of what is at play and what needs to be done,” she said.

Justice Maya called, too, for the creation of meaningful policies on such matters as maternity leave for judges — still lacking since she was the first pregnant judge on the Eastern Cape High Court — and for dealing with sexual harassment within the judiciary, noting that she has a proposal ready for presentation to a meeting of the heads of courts. And she stressed the importance of improving gender diversity in the institution.

“No country will thrive if one half of its citizens are downtrodden,” she said. “It has been proven across the world that when you put women in leadership positions who have empathy and understand the issues that affect women, things begin to change. And that gives women greater confidence in the judiciary.”

Since 2021, Justice Maya has served as the second chancellor of the University of Mpumalanga (UMP), which she calls her “fun portfolio,” because she enjoys interacting with students. In late fall she delivered the Archbishop Thabo Makgoba Development Trust’s annual lecture on ethical and moral leadership to UMP students, which is intended to inspire and impress upon them the importance of servant leadership to build a prosperous and equitable society. Noting that the university’s vice chancellor, another woman, introduced her, she viewed it as an opportunity to demonstrate what leadership can look like for the university’s male and female students alike.

“Seeing these two women at the pinnacle of our university is, I think, important,” she says. “I thought that any young person watching these two women lead this institution would surely be encouraged to do better, to be better.

“But my aim always is — and I make no apologies for this — to set an example that will encourage young women and girls to reach for the stars.”

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Spring 2023
Volume 42 No. 1