A vacancy on the Constitutional Court will remain unfilled after the Judicial Service Commission (JSC) on Tuesday announced that it was unable to find enough suitable candidates to recommend for appointment.
The commission interviewed four candidates, but after the interviews and behind closed door deliberations, its spokesperson Mvuzo Notyesi announced it decided that only three of these were found to be suitable for recommendation.
“One of the candidates was not found to be suitable. For that reason the JSC was unable to send four names to the president,” said Notyesi. In terms of the constitution, the JSC must give the president a list containing three more names than the number of vacancies it interviewed for.
The four interviewed on Monday and Tuesday were law professor David Bilchitz, senior counsel Alan Dodson and Supreme Court of Appeal justices Tati Makgoka and Ashton Schippers. Ahead of these interviews there were five candidates, but at the last minute senior counsel Matthew Chaskalson withdrew after he had a bicycle accident.
Notyesi would not answer questions about which of the four was considered not suitable.
Bilchitz had the longest interview and — as the first academic to be interviewed for the Constitutional Court in “many, many years”, said chief justice Raymond Zondo — faced extended questioning about his lack of judicial experience. A constitutional law specialist, Bilchitz had been invited to act at the Constitutional Court in the first court term this year but had never acted as a judge before.
And though he had been acting at the apex court, he had yet to deliver a judgment the commission could look at. During his interview, Supreme Court of Appeal (SCA) president Mahube Molemela suggested this made it difficult to assess his suitability, saying a candidate’s judgment track record was one of the ways to assess they could work under pressure and produce work of quality reasonably quickly.
Bilchitz was also questioned at length about his academic criticism of the ConCourt’s approach to socioeconomic rights, and his view that the court should have adopted a “minimum core” approach — that when it comes to socioeconomic rights, such as the right of access to water, housing and health care, “we need to define as South Africans a minimum level of access to these goods that everyone can have, and below which we do not believe is acceptable”.
Though favoured by some academics, the Constitutional Court has rejected this approach. After debating the merits of the minimum core approach with several commissioners, Kameshni Pillay SC ultimately asked him whether, if appointed, he would accept that the “die is cast” on this issue now.
He said the answer was “complex” because “you can’t simply come into a court and overturn a long history of development because ... you think your theory is better”. Respect for precedent was important.
But there was a balance that needed to be achieved as it was possible to overturn a previous judgment, as the Constitutional Court had done, if the court realised it was going down a path that did not achieve justice, he said.
When the same question was put to Dodson on Tuesday, he said he had, as counsel in the 2002 TAC case, been part of a team specifically briefed to try to persuade the Constitutional Court to adopt the minimum core approach. But he thought “the jurisprudence is settled”.
He said, especially given the number of judgments that had rejected the minimum core approach, “you can’t, at this point in time, walk back on that”.
The post on the Constitutional Court has been vacant since October 2021. The JSC’s decision on Tuesday means the court will remain one judge down in circumstances where it is struggling to cope with its workload.
Zondo came under pressure when it emerged that there was an initiative to bring in retired justices to assist with applications for leave to appeal. The plan has been discontinued, but it emerged in the fallout that the court was seeking ways to deal with a swollen workload since the court’s jurisdiction had been broadened in 2013.
Worsening delays caused by the increase in applications is that in the ConCourt every decision must be made by at least eight justices, unlike the SCA, which can decide applications in panels.
On Tuesday Judges Matter’s Mbekezeli Benjamin and UCT Centre for Law and Society’s Nurina Ally commented in an article on GroundUp that the apex court was yet to deliver a judgment this year — “unprecedented” for the ConCourt, they said. “By this time last year, the court delivered ten judgments. The year before, at least 13,” they said.
Makgoka said in his interview that, when he was invited to act at the Constitutional Court, coming from the Gauteng high court (known as South Africa’s busiest court) “I thought nothing could faze me”. But he was surprised by the sheer volume of work at the Constitutional Court, he said.
Dodson said the judges of the ConCourt worked extremely hard — emails being exchanged after 1am in the morning, working on weekends, public holidays and while they were on sabbatical.
Makgoka explained that even an order refusing leave to appeal effectively meant a judgment-producing process, with one justice producing a “note”, which other justices had to consider. Schippers agreed and said that then, in the middle of it all, there could be an urgent case that would interrupt all other work.
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