By contrast, in the United States, within weeks of the retirement of Justice Anthony Kennedy, Donald Trump nominated Judge Brett Kavanaugh as his successor. Leaving aside the obvious political decision in this nomination, the process was a speedy one. Similarly in the United Kingdom, Canada and Australia, vacancies to the highest court are filled fairly quickly.
The difference in South Africa’s case is that it employs the concept of an acting judge when a vacancy arises, so that the judicial complement is not depleted upon a vacancy. The use of acting appointments to the Bench is commonplace in South Africa and has been used for a long time, including acting appointments to what was until democracy the highest court in the land, the Appellate Division situated in Bloemfontein.
When the Constitutional Court was created, the decision was taken that all 11 judges would sit in every case. There was an immediate problem in that Justice Richard Goldstone, appointed by President Mandela to the Court, took up office as the Chief Prosecutor for the UN Criminal Tribunal and hence did not sit when the Court commenced its work. In the result, Sydney Kentridge QC, arguably South Africa’s finest counsel of all time, took up an acting appointment in place of Justice Goldstone. It was an inspired choice, presumably made by the then President of the Court Arthur Chaskalson, both because Kentridge was so distinguished and, given his age, it was highly unlikely that he would have been appointable as a permanent judge on the Court when a vacancy arose, presumably years later.
The second of these factors was important in that there was, at the time, some debate as to whether potential candidates for permanent appointment to the court should act on the court. While the practice of acting appointments was well established in South Africa, the Constitutional Court, unlike any previous court in the country’s history, wielded huge powers and was thus capable of making significant decisions which affected the politics of the country, which history has shown is exactly what occurred.
In this context, the question arose as to whether judges who may wish to seek permanent appointment to the Court would not be perceived to be less independent than their permanent colleagues, particularly in that the President of the country was charged with making the final decision as to the appointment of a member of the court.
The South African situation is made more complex in that acting appointments are also made when permanent judges take their long leave. The quorum for the Court is eight; that is, eight justices must sit in each case.
The practice since the inception of the court is that instead of sitting eight or nine if two or three justices are on leave or indisposed, acting appointments are made. That can create a problem of perception; for example in the recent case dealing with the legality of the appointment of Sean Abrahams as National Director of the NPA, the court of nine justices included four acting justices. This was a case of considerable political importance and in some legal circles there was a feeling that in a case of this magnitude the court should at the very least have been staffed by a significant majority of permanent justices. The argument had nothing to do with the undoubted competence of the acting justices, but with the perception that the highest court dealing with critical politically charged cases should be staffed by those whose tenure was secure.
Given the court’s practice, the appointment of acting justices when temporary vacancies occur is unlikely to change. But where there are vacancies, such as have occurred in the cases of Justices Moseneke and Nkabinde, these should be filled within a relatively short period.
There is an argument that the use of acting appointments affords the Chief Justice an opportunity to test the suitability of judges who have already acquired fine judicial records to the highest judicial office. Unquestionably, Chief Justice Mogoeng Mogoeng has employed the system wisely to ensure that a wide range of justices be given the opportunity, which in turn can only enlarge the pool of candidates for permanent appointment.
The downside is that some deserving candidates are never given this opportunity; one can think for example of at least two distinguished and long-serving members of the Supreme Court of Appeal who have not acted. It is possible that they were asked but could not take up an acting appointment.
But there lies the point – there is less transparency with acting appointments than there is with permanent appointments, which must be conducted through an open process before the Judicial Service Commission.
The upshot is that acting appointments are here to stay and they do afford the Chief Justice an opportunity to enlarge the prospective pool of candidates. But an appointment process to fill a vacancy should be commenced as expeditiously as possible – certainly within a year. DM