In the recent hearings of the Judicial Services Commission (JSC) in October 2021, there appears to have been a strong assumption that only sitting judges with considerable prior judicial experience should be appointed to the Constitutional Court. That assumption should be challenged — there are good reasons why the highest court of our land should include legal experts who may lack prior judicial (or litigation) experience. In particular, some of the judges in the Constitutional Court should be drawn from the realm of academia.
Much of the structure of the legal community in South Africa reflects our history as a British colony — for instance, the division between attorney and advocate mirrors the parallel distinction in the UK between solicitor and barrister. Similarly, the notion that judges should be drawn from the realm of barristers (or advocates in South Africa) who are practiced in litigation remains prevalent in the UK. Judges of the highest appellate courts are then drawn from judges of the lower courts.
There are a number of rationales for this approach. Advocates are familiar with the procedures and workings of court and are used to appearing before judges — consequently, it is thought that the transition to the judiciary can be relatively seamless. Those who have reached the top of their profession also have outstanding analytical skills and are able to articulate their claims verbally.
It is necessary, however, for practitioners to transition from arguing before judges to being the adjudicators of disputes. Higher courts are thus to be made up of those practitioners who have developed significant judicial experience. Judges in lower courts are also more likely to respect those who have similar backgrounds and have accumulated significant judicial experience. Sitting on a higher court also creates a trajectory, allowing excellent judges to transition to a higher status and authoritative role over time.
I shall not challenge this argument as it relates to ordinary judges of the lower courts. I believe, however, this argument is partially mistaken when it comes to appointments to the final authoritative court in our land, the Constitutional Court. Why?
To understand this, it is necessary to engage with the unique role of the Constitutional Court. It is required ultimately to provide the final decisions and authoritative guidance both to the judiciary as well as the other branches of government about the meaning of fundamental rights and the basic principles of our constitution. The Constitutional Court is also the highest appellate court in South Africa and, as such, it has to examine the most foundational justifications for existing rules and principles in our law. Having done so, it bears the burden of establishing what the authoritative law is throughout South Africa and ensuring it conforms to the dictates of justice.
In light of this role, there are strong reasons to include academics in the apex court. The approach and background of academics and practitioners differ. While some of our best legal minds are in legal practice, the demands of litigation and legal process require that the engagement with a particular subject area necessarily be limited to what is required to argue one’s case. Academic life encourages a depth of engagement with a subject that emerges from years of reading and reflection. Academic research spans multiple disciplines and jurisdictions.
Practice, in the adversarial system that exists in South Africa, also encourages binary thinking: a good advocate is one who puts forward the best arguments for their side of the case. In academic life, the focus is on taking into account a range of different points of view in developing one’s analysis — while one may argue for specific approaches, the goal is not to win the argument but to search for the approach that is most analytically sound and likely to bring about a just outcome.
Neither of these orientations is inherently better — they are simply different. That is why the Constitutional Court should reflect the experience of both practitioners and academics. Given the status quo is only to include practitioners and those with prior judicial experience, it is vital to recognise in particular the contribution academics can make to the advancement of law at this level. Academics can bring their training, research and experience to enhance the depth of reasoning of the Constitutional Court.
To do so, there is no need to have served in lower courts whose task and function are different — the role of judges in such cases is much more about applying existing law to the facts and they are bound by the decisions of the higher courts. Procedures and technicalities are of greater importance at this level whereas, in the Constitutional Court, the focus should be more on the substantive content of legal rules.
Moreover, it is not essential for all Constitutional Court judges to be experts in court procedure. The work of the court would thus be enhanced by having a greater diversity of skills — the court needs both the wisdom that emerges from years of practice and experience in adjudication; but also the depth of thought and nuance that academics can bring to determining what the law should be.
It is thus unsurprising to find that academics are appointed to many apex judiciaries across the world, without having to become lower court judges first. Many professors have been appointed directly to the German Constitutional Court and made a massive contribution to the development of its case law. Colombia, a Global South country with one of the most respected Constitutional Courts in the world, regularly appoint academics directly to its apex court.
Indeed, the first Constitutional Court of South Africa could not be drawn alone from those with prior judicial experience (and, in some cases, litigation experience) if the goals of constitutional transformation — as well as racial and gender diversity — were to be realised. Judges such as Yvonne Mokgoro, Albie Sachs and Kate O’Regan all had strong academic backgrounds and made substantial contributions to the court.
It is thus a pity that the JSC has recently adopted such a narrow perspective as to who can be appointed to the Constitutional Court. The anti-academic tendency seems to have been strengthened during the tenure of former Chief Justice Mogoeng Mogoeng, who on several occasions appeared to be ill-disposed towards academia.
That tendency should be reversed — the work of the Constitutional Court is vital for the health of our democracy and the development of our legal system. Including the expertise of academics would only enhance the work of the court and contribute to its depth and the advancement of our law. DM
Prof David Bilchitz is a Professor of Fundamental Rights and Constitutional Law at the University of Johannesburg and the University of Reading. He is also Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law. His latest book Fundamental Rights and the Legal Obligations of Business has just been published by Cambridge University Press.