The Judicial Service Commission (JSC) announced this week that only three candidates had been nominated for a vacancy on the Constitutional Court — not enough for a shortlist, so it could not interview for the post. The following day the JSC readvertised the post with a new closing date of August 30.
The post has been vacant since October 2021. Tuesday’s readvertisement was the sixth time the JSC has sought to fill what should be one of the most coveted judicial posts in the country.
The constitution requires that the JSC give the president a list with three more candidates than the number of appointments to be made. So, if there is one vacancy, it must interview at least four people, preferably more. The president then makes his choice from that list.
A lack of appetite from candidates to make themselves available for the court is not a new problem: it has reared its head periodically since 2012 at least. But it has never been entirely clear why there has so often been reluctance to apply for what should be the pinnacle of any judicial career.
However, the problem was publicly acknowledged by outgoing chief justice Raymond Zondo last year and, in part to address it, he announced that the Constitutional Court would be appointing acting judges directly from the ranks of advocates and from academia.
In April, senior counsel Alan Dodson and University of Johannesburg professor David Bilchitz were interviewed alongside two justices of the Supreme Court of Appeal. Another silk, Matthew Chaskalson, was scheduled to be interviewed but pulled out at the last minute because he was hospitalised after a bicycle accident.
After the interviews, the JSC announced that it could not send a list to the president because “one of the candidates was not found to be suitable”. The JSC did not say which candidate, but Bilchitz had a long, gruelling interview in which his lack of judicial experience (before acting on the Constitutional Court, he had never acted as a judge) was a focus. He was asked how the JSC could assess him when none of his Constitutional Court judgments had yet been delivered.
It is understood that, of the non-judges from the last round, only Dodson made himself available again. Both Bilchitz and Chaskalson are yet to deliver judgments from their acting stints, perhaps accounting for why they did not throw their hat in the ring in this round.
In the meantime, no more advocates or academics have been appointed as acting judges at the apex court. It is too early to say the initiative has failed but it has not turned out to be a silver bullet either, at least not in the short term.
So why were there only two judge applicants? Since the post has been vacant, there have been at least 14 acting judges at the Constitutional Court, but only two agreed to be nominated in this round.
The JSC has, for years, been criticised for how it treats candidates during interviews; and for making sometimes inexplicable choices – snubbing well-qualified candidates
According to recently adopted judicial appointment criteria, acting is not a prerequisite but it is “desirable”. In the past, it was seen as an almost insurmountable barrier. During former chief justice Mogoeng Mogoeng’s tenure, acting was like an audition: for candidates to see if they would be a good fit and to enable the JSC to assess them.
Acting appointments have therefore been an important pipeline to the court, and it may be here that part of the problem lies. A close look at those who have been invited to act in recent years reveals that four have already retired, two will retire in the next two years and three within the next five years.
Candidates who are approaching retirement have often been questioned by the JSC on why they should be elevated, when they would only be able to serve a few years. This may be a factor that has discouraged some candidates.
Moreover, if acting is an audition (or at least “desirable”), yet the JSC is troubled by the idea of recommending candidates who will soon retire, one may ask why so many acting stints have been given to judges close to retirement.
Then, there is the issue of how the JSC conducts its interviews and makes its choices. The JSC has, for years, been criticised for how it treats candidates during interviews; and for making sometimes inexplicable choices — snubbing well-qualified candidates. The commission has been taken to court on this basis a few times.
Of those judges that have acted in the last few years, three well-qualified and experienced candidates have had interviews that elicited public outrage — KwaZulu-Natal High Court judge Dhaya Pillay, Gauteng judge president Dunstan Mlambo and SCA justice David Unterhalter.
After Unterhalter was snubbed for the Constitutional Court in April 2021, the JSC was hauled to court about how that round of interviews was conducted and how it reached its list. The case was settled when the JSC agreed to hold the interviews afresh.
Candidates must expect to be closely scrutinised and intensely questioned. Constitutional Court interviews will inevitably be more publicised and more fraught — there is a lot at stake.
But each time the JSC acts in a way that opens itself to legal challenge, it undermines its credibility. Anecdotal accounts from legal sources say potential Constitutional Court justices have felt it was just not worth it to run the gauntlet of a potentially humiliating JSC interview; and then, even if they performed well, still get overlooked for seemingly inexplicable reasons.
The JSC has in recent rounds adopted interview guidelines that have done much to address some of these concerns. But the recent litigation by Freedom Under Law after posts were left open on the SCA (despite several qualified candidates) in October 2023, has done damage.
A sustained run of properly conducted interviews with predictable outcomes may help to bring forward the kind of judges needed at the apex court. Forward planning by the chief justice on the selection of acting appointments — whether they are judges, counsel or academics — could also build a better pipeline and ensure that the JSC is spoilt for choice in the future.
In the meantime, it remains to be seen whether the JSC’s latest readvertisement of the post will get any takers.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.