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ConCourt interviews — JSC fails to recommend enough candidates for vacancy after two gruelling days

ConCourt interviews — JSC fails to recommend enough candidates for vacancy after two gruelling days
From left: Judge Tati Makgoka | Judge Ashton Schippers | Advocate Alan Dodson. (Photos: Judges Matter / Oupa Nkosi)

There were four candidates for the permanent position of Constitutional Court justice, but after two days of gruelling interviews the Judicial Service Commission decided it could not meet the bare minimum of candidates to recommend to President Cyril Ramaphosa.

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

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Comments - Please in order to comment.

  • Geoff Coles says:

    Is the failed potential candidate Mr Bilchitz I wonder…… if for no reason other that he might be Jewish.

    • Henry Henry says:

      With the names “David Israel” !

    • Malcolm McManus says:

      Probably as much because this whole thing is a farce. The fact that Julius Malema has any part in it for a start. It already has prejudice on many fronts. Not just the Jewish part.

    • Pagani Paganini says:

      It is likely the the failed potential candidate is Prof. Bilchitz but that has nothing with his being Jewish. One key criteria for appointment to our courts is delivering a judgement. Clearly the fact that Prof. Bilchitz has not delivered even a single judgement made it hard for commissioners to access his suitability. One can also notice how long and difficult his interview was compared to the other candidates who have all delivered excellent judgements. The real tragedy was the withdrawal of Adv. Matthew Chaskalson (now acting Justice at ConCourt) at the last minute due to bicycle accident. I’m almost certain all four candidates except the good Prof would have been recommended to the president and satisfy constitutional requirement.

  • Rael Chai says:

    No surprises that the JSC once again refuses to submit recommendations, especially given that one of the 4 candidates is Jewish and two others are white. Racism and anti-Semitism in motion.

  • Henry Henry says:

    Maybe if the JSC would reveal how many applications there were for the post, amongst which it shortlisted only five? Or were the 5 the only applicants?

  • Tshepang Moloi says:

    I reckon the interfacing facets herein are 1) The metrics of applicants might not be equivalent to the threshold of maximum number of interviewed candidates to recommend a minimum number thereof, and 2) the applicants might not have illustriously prevalent experience in certain legal disciplines (either administrative law or law of delict for an example) which underscore a rather inadequacy of preparedness or readiness for apex court and last but not least, 3) the selection criteria, I presume, appears to be controversially intricate and might, in one or other way, hamper the selection of the candidates for recommendation to the president. Consequently, I propose that both selection criteria and inherent requirements of applicants be published for public scrutiny, openness and transparency.

  • Kevin Schaafsma says:

    David Unterhalter should have been appointed to this post at least a year ago, but it is quite apparent that there are enough members of the JSC to prevent his nomination. There is no shortage of brilliant legal minds capable of functioning very well in the ConCourt. But there are certain brilliant legal minds not wanted, and I suspect that was the issue here once again.

  • Errol Price says:

    One can only speculate as to whether the the Commissioners had ulterior motives in failing to put enough candidates forward.,
    What is clear, though is the abysmal ignorance of the Commissioners and the silliness of their questions.
    Some of the greatest judges in the US Supreme Court including Brandeis and Earl warren came with no previous judicial experience. A constitutional court is by its nature fundamentally different from courts with huge daily case-loads and with live witnesses.
    As for this person , Ngcukaitobi who is apparently a practising advocate, one can only shake one’s head at the sheer lack of understanding on his part about the separate functioning of the different arms of government.
    The reasons for the abject failure to advance social welfare in South Africa lie principally at the feet of a corrupt and inept executive and lrgislature.

    • Malcolm McManus says:

      I have watched a bit of this, and besides the ignorance and silliness of the questions, the body language and facial expressions of the commissioners, as well as the rude and aggressive tone in which they ask the questions, is very counter productive. Its as if they already have some sort of axe to grind.

    • Amadeus Figaro says:

      Ngcukaitobi is probably one of the revolutionaries who emphasise inequality over poverty. Inequality is politically sexy but of little use in helping society. China understands that. So you have tools for fighting inequality being used to fight poverty.

  • Pagani Paganini says:

    It is likely the the failed potential candidate is Prof. Bilchitz but that has nothing with his being Jewish. One key criteria for appointment to our courts is delivering a judgement. Clearly the fact that Prof. Bilchitz has not delivered even a single judgement made it hard for commissioners to access his suitability. One can also notice how long and difficult his interview was compared to the other candidates who have all delivered excellent judgements. The real tragedy was the withdrawal of Adv. Matthew Chaskalson (now acting Justice at ConCourt) at the last minute due to bicycle accident. I’m almost certain all four candidates except the good Prof would have been recommended to the president and satisfy constitutional requirement.

  • Sydney Kaye says:

    Why would any decent advocate or lawyer with any self worth want to submit himself to questions from Malema.

  • ibanza.co.za says:

    The solution is quite easy. Stop the salaries of those on the JSC and their support staff with immediate effect and you will see how quickly they will meet the Presidential criteria. For way to long these critters in Parliament have gotten away with easy money uttering party political sleaze.

  • Greeff Kotzé says:

    Constitution of South Africa
    CHAPTER 8
    Appointment of judicial officers
    174. (4) The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:
    (a) The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.

    It says MUST. The JSC has breached the Constitution. They should be ordered by the court to remedy their dereliction of duty and comply with the Constitutional requirement within thirty days. If they should fail to do so, they should be held in contempt and incarcerated until they comply. Upcoming elections is not a valid excuse. Enough politicking.

    On another note, the formula requiring four nominees for one vacant position, but only six nominees for three vacant positions can be improved, perhaps. Suggest an amendment to change that to number of vacancies x 2 +1. Then nominating “only” three candidates for the one vacant position would have been allowed.

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