By Lehlohonolo Lehana.
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.
The JSC concluded that it could not, as is required by the Constitution, recommend four suitable candidates to fill a single vacancy at the apex court.
As a result, it would need to again conduct interviews for the vacancy.
The vacancy arose when Justice Sisi Khampepe retired. The court has not operated with a full complement of judges since 2016 and has had to rely on the regular appointment of acting judges.
The candidates interviewed on Monday and Tuesday included Law professor David Bilchitz, former Land Claims Court Judge Alan Dodson and Supreme Court of Appeal justices Tati Makgoka and Ashton Schippers.
The decision was announced by JSC spokesperson Mvuzo Notyesi who, despite questioning, didn’t reveal which candidate had fallen short of meeting the criteria for recommendation. This means the court will remain one judge down, even as it is crippled by the caseload.
It is bound to exacerbate the apex court’s resource constraints. It failed to deliver a single judgment in 2024, allegedly owing to the sheer number of applications it receives, which must be deliberated on by eight judges.
Bilchitz’s interview took up the entire interview slot on Monday and chief among the concerns was the law professor’s inexperience, since, before his current acting appointment at the Constitutional Court, he had not sat as a judge despite his vast academic experience.
The apex court’s inability to cope with the pressure of an increasing caseload and lack of resources became abundantly clear during the two-day interviews, and several questions were levelled at the candidates to examine how the court could best deal with these issues.
Commissioner Tembeka Ngcukaitobi SC referenced research by the University of Cape Town’s law faculty, which showed that the decline in the ConCourt’s performance is linked to its lack of a full complement of justices, and questioned whether this shouldn’t be an issue that the JSC should solve easily.
Regarding the Constitutional Court’s workload issues, Lamola asked each candidate whether merging it with the SCA would alleviate the caseload and ensure justice is delivered in a timely manner.
In reply, Dodson said he didn’t believe merging the courts was the solution because the current system of having both an SCA and a Constitutional Court was working. He did, however, call for an amendment of Section 167(2) of the Constitution, which required that all Constitutional Court justices sit together to decide on leave-to-appeal applications.
Dodson suggested that leave-to-appeal applications should be decided by panels of two or three justices, rather than a full bench.
He added that even though the jurisdiction of the ConCourt was expanded, which resulted in an increased caseload, not a single resource had been added to the court, which he believed should be addressed.
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,” Dodson urged.
Makgoka agreed with Dodson, adding that he would maintain the structure of separate courts.
“I wouldn’t collapse [the structure]. I think it works well so far. It might well be that there needs to be some form of intervention in the Constitutional Court regarding the manner it does work [and] the speediness with which it produces its judgments,” he said.’
Judges Matter, a civil society organisation that focuses on the appointment process for judges and provides insight into the JSC’s structure and processes, expressed disappointment in the commission’s failure to make recommendations.
“We are very disappointed that the interviews resulted in no appointment. The court has been short a justice for a long time, and the lack of enough candidates is concerning. The court has experienced delays in handing down decisions. We hope that the next round in October 2024 is more successful,” it said.
While the week has been shortened by the JSC’s politician members who are eager to hit the campaign trail, it is no less important. The JSC is faced with crucial decisions on the appointment of judges to the apex court, two specialist courts and a high court. There are also crucial questions on how the JSC implements its judicial appointment criteria, especially following years of criticism.