JSC fails to select concourt judge
The Judicial Service Commission could not find the four candidates required for merging the court with the supreme court of appeal
The Judicial Service Commission was this week unable to forward enough names to the president to fill a long-standing vacancy at the constitutional court after interviews with four candidates marked by much handwringing over work flows at the court.
The commission is required to recommend four candidates to President Cyril Ramaphosa for a single position at the apex court, and could not do so because it deemed one of the candidates unsuitable for appointment.
That candidate was constitutional law professor David Bilchitz, who is a respected, much published academic but has no judicial experience apart from acting at the constitutional court for two terms.
The JSC has repeatedly failed to fill the vacancy created by the retirement of Justice Sisi Khampepe in 2021. This moved Chief Justice Raymond Zondo to invite senior advocates and academics to act at the court, with a view to later availing themselves for appoint- ment. The interviews came just weeks after Zondo proposed a constitutional amendment to speed up adjudication at the apex court where bottlenecks have become a source of increasing frustration.
He did so after reluctantly scrapping an initiative to use retired justices to help consider new applications to the court, which had been criticised by the Council for the Advancement of the South African Constitution as impermissibly outsourcing a judicial function.
The amendment he has in mind is to section 167(2) of the Constitution, which prescribes that a matter that serves before the court must be heard by at least eight judges, and this included new applications. Zondo is proposing that new applications should be heard by smaller panels of judges instead.
It would, he said, mean a two-thirds reduction in the amount of time each member of the court spent on this work, freeing them to focus on writing judgments.
The chief justice raised the issue directly with aspirant constitutional court judges on Monday and Tuesday, before commissioners pressed them to elaborate on their view.
Justice Minister Ronald Lomala put to each candidate a suggestion by Justice Rammako Mathopo, in his interview for a position at the constitutional court in 2021, that it be merged with the supreme court of appeal (SCA). “Can that help in terms of access to justice for all?”
All disagreed. Perhaps the most complete answer came from Alan Dodson SC, who has repeatedly interviewed for a position on the constitutional court in recent years.
“I think if something is more or less working, I don’t think one must fix it or try to change it and it is more or less working, the system,” Dodson said. “If one looks at the adjudication of all of the respective courts at the different levels … each has its particular role to play.
“I think that particularly if you look at the history of the constitutional court, it is something that arose out of our apartheid past, the parents of the Constitution as it were, wanted to have a final adjudicative body that was representative and that would make considered decisions on the Constitution and its interpretation and the legislation,” he said. “And I think it remains a specialist role of that sort in the constitutional court.”
Dodson added that he was initially not a proponent of the expansion of the jurisdiction of the constitutional court to include matters of general public importance in addition to constitutional matters, in 2013, but had since changed his mind. “It can play a meaningful role in developing the law on specific legal questions that are placed before it that go beyond purely constitutional issues,” he said.
The expansion of the court’s jurisdiction dramatically increased its workload, while its delivery rate has declined. Zondo’s deployment of retired justices Zak Yacoob and Johan Froneman was designed to deal with the backlog in processing new applications, of which the court received some 350 last year.
Dodson proposed that the court be allowed to sit in panels when hearing applications for leave to appeal.
“There are some changes that are needed though, specifically to section 167 (2) of the Constitution. What is not working at the moment at the constitutional court is the requirement that the court sits en banc [on the bench] also for adjudicating applications for leave to appeal, in particular,” Dodson said.
“There they should be able to have the same arrangement that the supreme court of appeal has in terms of the Superior Courts Act to be able to deal with applications for leave to appeal in small panels of two or three. That is urgently needed.”
Advocate Tembeka Ngcukaitobi asked whether the problem was because the court had not been functioning with a full complement since 2016, adding if this was the problem it was “within [JSC’S] control” to correct.
Legal commentators believe the manner in which candidates have been harangued, often on politics, by JSC commissioners in the recent past have deterred many from availing themselves. Though the tone of interviews has improved, Economic Freedom Fighters leader Julius Malema, who did all he could to deny David Unterhalter SC a seat on the constitutional court, this week tackled Bilchitz on his views on Israel.
Judith February, the executive director of Freedom Under Law, said the dearth of suitable candidates for the highest court was “telling of the process of appointing judges to the court and the JSC’S handling of the same”.
SCA president Mahube Molemela this week asked whether increasing the number of judges beyond the current 11, which would also require a constitutional amendment, was a good idea.
Dodson said although it might alleviate the situation, he did not think it was the solution.
“I think that there is merit in that design. The numbers at the court are already more than [at] other apex courts around the world. What I would advocate for is the amendment to provide for panels as well as an increase in the resources of the court,” he added.
He said when the court’s jurisdiction was expanded, an increase in resources did not follow. “I don’t think a single resource was added to the court.”
Dodson recalled a visit to the court by one of the justices of the Canadian apex court, which has nine justices and a similar caseload — in the order of about 400 applications annually.
The court sat in panels when weighing applications for leave to appeal, as well when hearing matters set down, and had a law branch assisting judges. This referred to a team of 21 experienced lawyers who are available to the court to assist with preparing memoranda.
“That is apart from the three research clerks that each of the judges has. Therefore, the constitutional court has been left behind in terms of the provision of resources to that court and in my view that is the solution — provide the court with additional resources to recognise the expanded jurisdiction, which was several years ago, and urgently needs to be attended to with respect.”
Those who complain at the increasing length of time it takes the court to deliver judgments — it handed down its first one of the year this week — perhaps forget that constitutional courts in other countries, in Europe in particular, can take years to hand down judgment.
The frustration speaks not only of the tension — evident in Lamola’s suggestion to merge courts — there is between the executive and the chief justice, but of the sense of urgency that frequently informs constitutional court applications on issues of social justice.
Commissioners this week again asked candidates whether the court was making a tangible contribution towards creating a more equal society.
Bilchitz criticised the established approach of applying the standard of reasonableness to steps taken by the state to ensure realisation of social rights, and argued in favour of an approach of quantifying the core minimum content of those rights.
Dodson disagreed, saying: “I think the jurisprudence is settled.
“I think you can’t at this point in time, given the number of judgments which have applied the reasonableness criteria, start to walk back on that and I think that is all the more so from the perspective of the separation of powers doctrine.
“Once one strays into the notion of a minimum core, the court is much more directly addressing how resources should be allocated and ultimately that isn’t the function of the court.”
Ngcukaitobi asked SCA Judge Tati Makgoba whether poverty remained so pervasive because the Constitution was silent on economic redress or whether the court, or the state, was failing in this regard.
“This ball of the absence of social justice keeps being pushed around,” he said.
Makgoba replied: “We might have to look to the executive, as to whether the executive has done enough to marshall all the resources in the country to make sure this economic emancipation is realised.”
The fourth candidate interviewed this week was SCA Judge Ashton Schippers. There would have been five candidates but advocate Matthew Chaskalson SC withdrew for personal reasons.