Opinionista Elisha Kunene 28 September 2018

Fill The Court: South Africa’s Constitutional Court and its continuity crisis

South Africa’s Constitutional Court is faced with a crisis of continuity, which, if left unchecked, could and should spiral into a crisis of credibility.

There are a few background facts that are important to understanding how the Bench of the nation’s highest judicial authority is constituted. First, the Constitutional Court has 11 seats, but only eight judges are necessary to meet quorum. This can come in handy in the rare instance of conflicts of interests. But, more often, and more often, this is used to accommodate the Justices’ conflicting commitments.

Second, judges customarily go on long leave for a typical period of six months (two court terms).

Third, South African judges are subjected to term limits of either 12 or 15 years, depending on how long they served on the Bench before being appointed. This is why the court has bid farewell to Justices Nkabinde, Moseneke and Van der Westhuizen in the last two years. Justices Cameron, Froneman, Jafta and Khampepe will leave within the next two or three.

Fourth, and following from the above, the Constitutional Court is regularly staffed by acting justices, appointed at the instance of the President, on the advice of the Minister of Justice with the concurrence of the Chief Justice.

There are four acting justices on the court, three of whom will have been acting for all four terms of this year. One permanent appointment was made last year, but two further seats remain vacant. The JSC is conducting interviews for various Superior Court vacancies in October, and has called for nominations to these positions. The two empty Constitutional Court seats are not among those advertised.

So, really, there is no indication of when these seats will be filled. By my count, since the beginning of 2017, no less than 20 different Justices have sat on the Constitutional Court Bench (this excluding the judges who had acted in the last terms of 2016 and would continue to participate in discussion of cases in which they had formed a part of the coram). For some reason, this has not featured prominently in discussions surrounding the court and its recent jurisprudence.

There is a revolving door at the entrance of Constitution Hill, despite there being at least a handful of reasons to treat the filling of vacant seats as an urgent matter. Of those reasons, I have selected a few.

Quality

One point, which it is probably best not to dwell on, is that of the quality of jurists appointed. I do not know what makes a judge good or bad, but I believe I am not alone in hoping that the judges we have sitting on our apex court are at least among the best.

Many of the best judges below have conflicting commitments, and judges seldom act twice. When you run a system where you rotate multiple positions every few terms, you need a much larger roster. Acting appointments are not new, of course. Most of our permanent judges acted before their permanent appointments. But that’s my point.

In the past, an acting appointment used to be an indication that a judge was a realistic prospect for permanent appointment. We may not be there now, but we cannot be more than a few rotations away from having a judge who frankly lacks the experience and talent to hold a vote which previously belonged to, say, Deputy Chief Justice Dikgang Moseneke. We should take more seriously the challenge of having the best court we can have.

Court Administration

If you’re not sold on the last concern, perhaps this more boring variation will appeal to you. Even if the work of a Constitutional Court judge was not any more demanding (in terms of experience or talent) than that of a judge in any other court, it is at least a fair amount different. It may not be a difficult job to do, but it is unquestionably a difficult job to learn. This is true of judges and clerks.

The court is a labyrinthine and complex system, unlike any other institution in the South African judiciary, and no amount of talent can guarantee that anyone will hit the ground running. While new people are learning the job, they are not pulling their weight. When they are not pulling their weight they do not hold an equal ability to contribute at their best. When too many people are learning at the same time, case management suffers, leading to miscarriages of justice. Judges also often leave cases in the lower courts pending while they go to Hillbrow. Boring as it sounds, court administration determines whether people’s cases are heard and whether justice is delivered before it is too late. For that reason it is very important.

Lasting Internal Coherence

For an apex court, especially one of general jurisdiction — meaning that all areas of law can be rewritten by the court as frequently as it pleases — consistency of vision and understanding is incredibly important. Otherwise, the court’s ability to forge a coherent jurisprudence is massively undermined. I recall once joking to colleagues that being a judge must be incredibly boring because I heard audio of Ruth Bader Ginsburg asking three different lawyers an identical question over the course of 17 years. In some parts of the world the law evolves very slowly.

In contrast, the continuity and incrementalism of our much younger constitutional jurisprudence is already curtailed by term limits, but the unusually frequent turnover of personnel has even further truncated our time horizons. I often wonder how sustainable we think this is.

The courts, when deciding what cases to hear, how to construe precedent, and what jurisprudential positions to adopt on contentious issues, needs to have a clear and in-depth understanding of its own work — the type that can best be cultivated by a prolonged immersion in the work. Our court has not had this for a long time. Some in the profession can be forgiven for feeling like we have a court which often just changes its mind on some fairly fundamental questions.

Democratic accountability

Judges are not elected, like politicians, but a lot of effort is put into ensuring that there is a substantial amount of transparency in how judges are appointed. See, for instance, the work done by non-government organisation Judges Matter, to cover the work of the Judicial Service Commission.

But democratic deliberations concentrate on permanent appointments, even where there are up to four acting appointments with an equal vote. In any case, law is not an interesting enough topic for the general public to engage meaningfully in a full-on debate about five candidates at the same time. So acting judges slip on to the court undetected. And one can’t help but wonder whether the incentives for acting justices hoping to be appointed are to be deferential to the senior members of the Court.

An additional concern is that new permanent judges are not subjected to any meaningful scrutiny because they are never the only inexperienced person on the Bench. And when decisions are made, such as the last term where three of the four acting judges have their terms extended, while one returns to the lower court, no one knows why. It’s hard enough to even keep up. Who is on our Constitutional Court Bench? Why? Do you know?

There are multiple ways to design a court. Most courts have a large roster of judges and assign different collections of judges, usually three or five at a time, to different cases. When you go to the Supreme Court of Appeal you have no idea who you will appear before. But we chose the alternative model for our apex court. One Bench, 11 people. Different models have different benefits. But I do not see any benefit to half-arsing the model we have chosen.

Other countries take this model seriously (Ruth Bader-Ginsburg famously appeared in court mere days after her husband died; and Supreme Court of the United States judges missing hearings for conflicting commitments is unheard of).

If we’re serious about the system we’ve chosen, let’s act like it. Fill the court. DM

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