The JSC interviews will be held from 3 to 12 October. Astonishingly, no candidates will be interviewed for the available Constitutional Court position.

This position was left vacant after the April interviews, whether rightly or not, as the JSC only nominated four of the five candidates, leaving President Cyril Ramaphosa able to fill only one of the two vacant positions.

Section 174(4) of the Constitution requires the JSC to nominate “three names more than the number of appointments to be made”. The JSC has relied on this section to justify why it can’t hold interviews in October for the vacant Constitutional Court position. According to the JSC, it received four nominations, but one nomination was not eligible for shortlisting, so they do not have the requisite number of candidates to proceed. This is within their right.

However, the question that must be asked is why so few nominations were received. Is it because we do not have capable and suitable persons to sit on the Constitutional Court bench? Or, and this is much more likely, is it because potential candidates are weary of accepting the nomination and opening themselves up to the interview process?

Few people will have forgotten the drama that ensued in previous interview rounds. Only last year, the JSC had to conduct interviews afresh after a court challenge by Casac.

We have come to expect more than a fair share of commotion and some raised voices from the commissioners. Here we remember Judge David Unterhalter and the accusation that his position on the SA Jewish Board of Deputies made him partial to Zionism. Or Judge Dhaya Pillay and her exchange with National Assembly representative Julius Malema.

Few will forget the Chief Justice interviews, especially those questions (or allegations) directed at candidates that had not been raised with them before the interviews. Like the allegations of sexual misconduct or secret meetings in a hotel room with a president.

What has become apparent is that being interviewed for a Constitutional Court position is gruelling. This is not to say it should not be challenging. After all, we want the very best candidates to sit on our highest court.

But, at what cost? The cost of the candidate’s dignity? Or the cost that the very candidates that we need on the bench will not subject themselves to such a trial?

We know that the conduct of commissioners can impact potential candidates. Judge Pillay withdrew her candidacy when the JSC repeated the interview process.

Aside from undignified interviews, there may be other reasons why there are so few nominations for the JSC to shortlist. The Constitution only requires that four members on the Constitutional Court bench be judges when they are appointed. However, the JSC’s misunderstanding of this provision is apparent from previous interviews.

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Adv Alan Dodson SC faced question after question regarding the fact that he was not a sitting judge, even though he had years of experience on international tribunals. While experience in this regard is important, the bench, as envisaged by the Constitution, can, and one could argue, should be made up of various persons from different backgrounds, experiences and professions so that each can bring something important to the bench. Eventually, on his fourth attempt, his name was put forward to the president.

A further example would be Judge Unterhalter, who is, in fact, a sitting judge. However, the JSC did not believe he had spent enough time on the bench. Again, it failed to consider his years of experience as a senior counsel or his adjudication positions on international bodies.

In fact, since at least 2015, Adv Dodson SC has been the only non-judge to have accepted a nomination. This means we may be missing out on considerable experience from a range of different professions, particularly from academics and senior counsel. Both professions could add much value to the Constitutional Court.

The commissioners wield tremendous power and influence over the composition of our courts. The previous conduct of some commissioners who sought to assail competent and worthy candidates through accusations and attacks may lead one to believe that this power is being used perversely to ensure that only candidates of their choice are appointed. Such a situation would be intolerable.

To counter this, the JSC interviews must be conducted in a dignified manner, befitting the candidates who appear before it. A big step towards achieving this is to have clear and objective criteria by which each candidate can be measured, as well as to ensure that there are no more “surprise” allegations thrown at the candidates without their prior knowledge.

What does the future hold? The April 2022 interviews saw a new Chief Justice as Chairperson of the JSC and the replacement of vocal and often controversial commissioners, Adv Dali Mpofu SC and Adv Griffiths Madonsela SC. These interviews were markedly smoother and more dignified than the previous rounds.

However, as many of the candidates were undergoing the interview process for the umpteenth time, it is too early to say that the JSC has convinced the public that it can conduct interviews in a manner that respects the dignity of the candidates while still putting them through their paces.

Until we see a fresh round of interviews with new candidates, we will have to suspend any judgement as to whether this new-found decorum will remain an ongoing feature of JSC interviews.

One thing is sure, the highest court in our land must have justices that are not only beyond reproach themselves, but the bench as a whole must be filled with independent minds that complement the skills and experiences of the others.

This is ever more important at a time when the judiciary has come under frequent fire from politicians, and this will most likely only increase as more perpetrators of State Capture are brought before the courts.

So, is the lack of potential candidates due to the undignified way the interviews are conducted, or perhaps the futility of putting up one’s name — or even a combination of both?

Any which way, the South African judiciary is harmed by such an outcome, and any harm to the judiciary is significant harm to the South African people. DM