After two days of interviewing four impressive candidates for the Constitutional Court vacancy, the Judicial Service Commission has failed to recommend a minimum of four so President Cyril Ramaphosa can select one for appointment as a justice – a post that has been vacant since October 2021.

The JSC announced this on Tuesday after it determined during closed-court deliberations that only three of the candidates interviewed were suitable for recommendation. This falls short of the constitutional mandate, which requires the JSC to provide the President with a list of candidates.

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. 

Candidate questioned about inexperience

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.

EFF leader and JSC commissioner Julius Malema led the charge in questioning Bilchitz’s suitability for appointment. Malema asked: If he were confronted with the situation where a “black African male who comes with huge experience”, including excellent judgment writing, was up for the position, what would be the right decision to make to enhance transformation?

Bilchitz answered that he may be young, similar to Malema and Justice Minister Ronald Lamola, who was present at the interview, but he has vast experience as a professor of fundamental rights and constitutional law who was invited to act in the Constitutional Court by Chief Justice Raymond Zondo. Bilchitz has been serving at the apex court since February but has yet to deliver a judgment.

Supreme Court of Appeal (SCA) president Mahube Molemela suggested that the fact that Bilchitz had yet to deliver a judgment made it difficult for the commission to assess his suitability since a judgment track record was a way to examine a candidate’s ability to work under pressure and produce a good quality of work expediently.

Despite this, Bilchitz argued that his appointment to the Constitutional Court would advance representation for the LGBTQ+ community and promote transformation.

“What I can offer… is a diversity of perspectives and also perhaps one element of diversity that hasn’t really been canvassed thus far, and that is that when I was growing up, people with my sexual orientation were criminalised for having same-sex relationships… When we look at Section 174 [2] [of the Constitution], we want South Africans to see themselves in the court and so I would hope my appointment would in some sense advance LGBTQ representation,” he said.

ConCourt inefficiencies

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.

Read more in Daily Maverick: A leadership transition, impeachments and election matters — issues facing the judiciary in 2024

“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.

Advancing socioeconomic rights

Ngcukaitobi asked Makgoka whether he thought the Constitution had a vision for the economy, adding that despite the Constitution and the Constitutional Court, after 30 years of trial and error there was no social justice in South Africa.

“One could say it’s because the Constitutional Court is not enough to translate the vision of the Constitution into practice, or one could say it’s because the executive is not doing enough, or because the Parliament is not doing enough. This ball of the absence of social justice keeps getting pushed around,” Ngcukaitobi said.

Makgoka replied: “The Constitution does not explicitly provide for the economic solution that you speak about, but because it provides for justice… I don’t think there is any explicit reference in the Constitution for that. It might be implicit if you read the question widely as a vehicle to reconstruct South Africa, but um, there’s no implicit or express provision for that.”

Unsatisfied with the answer, Ngcukaitobi pressed Makgoka, asking whether the judiciary and executive had done enough to marshall all the resources in the country to make sure this economic emancipation was realised, to which the judge responded:

“I am a product of the liberation struggle. I was part of the liberation struggle in the black consciousness movement, and the economic empowerment and upliftment of black people, in particular, remains at the back of my mind. It worries me… that after 30 years we haven’t moved as speedily as we should have.” 

Speaking to Daily Maverick, 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. DM