JSC CRITERIA OP-ED
Law professors as ConCourt justices – what does that mean?
On the sidelines of the Judicial Service Commission’s interview session on Wednesday, Chief Justice Raymond Zondo announced that he had decided to revive the practice, last used more than 25 years ago, of appointing senior law professors and senior legal practitioners directly to the Constitutional Court. A key motivation, he said, was a desperate need to fill a longstanding vacancy on that court. But what does the decision mean for the ConCourt and the judiciary generally?
In terms of Section 174(5) of the Constitution, only four members of the ConCourt need to have been judges prior to appointment to the apex court. The drafters of the Constitution envisaged that, since the ConCourt is a special court meant to interpret the new democratic constitution based on a Bill of Rights, it would need fresh approaches and constitutional expertise that was not found inside the judiciary at that time. The additional benefit was that the ConCourt would draw on a diversity of experience to enrich the quality of its judgments. That’s why in 1994, President Nelson Mandela appointed advocates Arthur Chaskalson, Ismail Mahomed, Pius Langa and Albie Sachs, and law professors Kate O’Regan and Yvonne Mokgoro.
However, the practice in the past 27 years has been that only senior judges have been appointed to the apex court. There have also not been opportunities for academics and legal practitioners to act on the ConCourt. Sir Sydney Kentridge has so far been the only legal practitioner to act on the Constitutional Court. He did so between 1995 and 1996.
The last person to come directly from practice was Justice Mbuyiseli Madlanga, appointed to the ConCourt in 2013. However, Madlanga himself was previously a senior judge before resigning and going back to legal practice as an advocate.
Part of the reasoning behind limiting appointments to senior judges was an expectation that judges would rise through the ranks up to the apex court with constitutional law experience. However, as Chief Justice Zondo conceded, a judge who was not a constitutional law expert on appointment at the high court was unlikely to gain that expertise on the way up to the ConCourt.
In addition, a rigid requirement that only judges may be appointed has robbed the ConCourt of the value of a diversity of perspectives on the important legal questions the court grapples with.
Although Chief Justice Zondo indicated that constitutional expertise is needed for now, the court could also benefit from commercial, private law and human rights expertise.
While some constitutional expertise has developed among judges over the years, academics and practitioners still have an edge, as they would have devoted all their careers in that one area. They would also offer a diversity of perspectives to the debates and overcome some of the blind spots that judges might have developed over their time on the Bench.
The exclusive appointment of only senior judges has also caused problems for the JSC. In the past two interview sessions, the commission has been unable to find the minimum number of candidates. The Constitution requires the JSC to recommend to the President three more candidates than is needed to fill the vacancy. Chief Justice Zondo also stated this as motivation for reviving the practice of bringing law professors and lawyers back.
Read more in Daily Maverick: Judicial Service Commission fills just half of Supreme Court of Appeal posts – but why?
Two senior practitioners (whose names will be revealed in due course, Chief Justice Zondo said) have already been selected to act at the ConCourt in Term 4 (November to December 2023) and a law professor for Term 1 (January to March 2024). According to the Chief Justice, it is expected that those who will be appointed to act will also make themselves available for permanent appointment in April 2024, when the JSC sits for interviews for the last remaining ConCourt vacancy.
Fairness and transparency
But how were these two legal practitioners and one law professor selected?
The Chief Justice explained on Wednesday that, at this initial stage, he selected the candidates based on knowing about their legal track record and recommendations from their peers. While this informal process is understandable at this initial stage, there are obvious problems of the fairness and transparency of the selection.
A better process would be for the Chief Justice to formulate written criteria for selection and advertise them well ahead of time. The criteria would indicate the area of legal expertise needed, the relative years of experience, and supporting evidence, including cases and publications. There are existing measures of expertise.
Skilled advocates are appointed to senior counsel (or “silk”) status, and those regarded as experts get the moniker of “eminent silk”. Most law professors with respectable research records feature on the National Research Foundation’s peer rating system; those with “A” ratings are undisputedly recognised as international leaders in their field of expertise.
Although Chief Justice Zondo indicated that constitutional expertise is needed for now, the court could also benefit from commercial, private law and human rights expertise. The advert would require candidates to indicate their availability, considering that academics would need to go on a sabbatical from university, and legal practitioners need to alert their clients.
While the circumstances of reviving the involvement of academics and legal practitioners in the Constitutional Court are less than ideal, it is nevertheless a positive development for the court and the quality of its jurisprudence. DM
Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a civil society watchdog of the judiciary based at the Democratic Governance and Rights Unit in the UCT Law Faculty.
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I do not think that academics would make very good Constitutional judges we would have the fellow who defended Trump, Dershowitz, who said a lot of rubbish during the impeachment trial. The question that then arises is what constitutes expertise in the views of Mbekezeli Benjamin. His flawed view that only academic qualifications can make a person an expert without having practised as a judge or as a senior counsel with publications in his name or her name. We have had academics like Richard Calland attacking a seasoned former Chief Justice Ngcobo on the Phala Phala matter as well as Thuli Madonsela and we cannot have such people as judges who failed to appreciate the well reasoned prema facie case against the President. You have had other legal q
You have had legal queslings in academia who have no grasp of the law of evidence from Paul Hoffman to Pierre de Vos. A very simple issue well understood by the former Chief Justice Ngcobo on what basis could hearsay evidence be accepted by a tribunal that is laid out in the law of evidence and jurisprudence. Legal plumbers insulted the former Chief Justice and his panel not based on any erudite legal argument but innuendo and insults that are beneath legal scholars. Mbekezeli Benjamin must not look for short cuts to the Constitutional Court but the well
known and tried and tested routes. We have problems with some of the judgements of the Constitutional Court on various areas as well as the increasing politicisation of the judiciary under Ramaphosa.
I would rather have the panel include an academic expert on the constitution itself, than have an advocate that might have specialized in defending corrupt politicians in criminal matters. For example imagine the mayhem if Mpofu would ever be appointed, something that former prisoner zuma would have loved to secure.
In the US we’ve seen the politics of presidents stuffing Supreme Court with political appointees.
Constitutional law, just as any other branch of the law (and there are many!), requires specialist knowledge and expertise which some advocates develop as part of their practice. As a general proposition, academics may mostly lack practical experience but their specialist knowledge of the subject-matter may compensate for what they lack in experience in legal practice. In my view a careful selection of suitable candidates, making use of applicable criteria in a transparent process, is sound and will benefit the standard of the ConCourt’s jurisprudence.