The recent interviews held for the one position on the Constitutional Court have been somewhat more interesting than the previous vacancy interviews. For the first time it appears that greater emphasis was given to discussing legal principle, the law as set out in cases that have been decided and the jurisprudential direction that the Court should take. This is an extremely welcome development and is hopefully a harbinger of things to come.

Regrettably, the Judicial Service Commission (JSC) could not nominate all four applicants; hence the process will have to be redone. Some lessons have, however, been gleaned from these interviews.

The application by Professor David Bilchitz brought something new to the proceedings. It’s been a long time since an academic lawyer was nominated for a position on the Constitutional Court. In general academic lawyers have fared very poorly in these deliberations, notwithstanding their pedigree. Professors John Dugard, Cora Hoexter, Cathi Albertyn and Penelope Andrews were all unsuccessful candidates, notwithstanding their obvious academic credentials. Only three academics have made it onto the Court – Kate O’Regan, Yvonne Mokgoro and Johan van der Westhuizen (although in the case of Van der Westhuizen he had also served for a short while as a high court judge). 

There can be little doubt that the appointment of justices O’Regan and Mokgoro were inspired moves by the JSC. As young as she was when she was appointed, O’Regan’s record supports the obvious conclusion that she was one of the finest judges that the Constitutional Court has produced over the 30 years of its existence. Mokgoro also proved to be an important, progressive and highly thoughtful member of the Court.

Read more in Daily Maverick: ConCourt interviews: JSC fails to recommend enough candidates

Their accomplishments could arguably be seen as support for Bilchitz’s application. This column, however, does not wish to focus on the personal application of Bilchitz, an accomplished academic, as he indeed is, but rather about the general position of academic lawyers and the possible appointment thereof to the Constitutional Court. 

When justices O’Regan and Mokgoro were appointed, the Constitutional Court was of course in its infancy and had jurisdiction only insofar as constitutional matters were concerned. In addition, at that time, the sexist nature of the legal profession meant that the JSC was well advised to lift its gaze beyond the practising profession and ensure that highly qualified women should be appointed to the Court, as indeed was the case both with regard to the then professors O’Regan and Mokgoro. Today, by contrast, the Constitutional Court has jurisdiction over all appeals, both of a constitutional and more general nature. In addition, 30 years into democracy and the gender imbalance both on the Bench and in the legal profession has, to some extent, (certainly not sufficiently) been addressed. There is now a greater pool of talent within the profession which can promote both diversity of demography and of jurisprudential outlook. 

The exchanges between the JSC and Bilchitz were both instructive and helpful in seeking to develop a set of guidelines for a possible appointment of an academic lawyer.

That, of course, does not mean that an academic lawyer should be excluded from consideration. For example, Dugard, our finest legal international lawyer, would have brought much-needed international law expertise to the Court at the time at which he applied. Professor Hoexter, a truly outstanding administrative lawyer of her generation, would have brought important expertise to the deliberations of the Court. 

Hence consideration should be given, in exceptional circumstances, to the appointment of an academic to the highest court in South Africa. Far more preferable, however, is for a talented academic lawyer to be given an opportunity to act on the high court and gain forensic experience before elevation to the Constitutional Court. 

The argument which appears to have been advanced by Bilchitz is that this approach would preclude academics from being appointed in that they do not have practical expertise to deal with high court matters. However, similar disputes are very much the stuff of the Constitutional Court. Second, a truly talented academic with appropriate support from his/her court colleagues would be able to cope more than adequately with the work of a high court judge, as has been the case with a number of academics who have been appointed to these courts. 

The key question is whether the academic applicant is of so exceptional a kind that his or her lack of any judicial experience can justify an appointment to the highest court in the land where issues of company law, competition law, tax law, contract law ad delict, for example, constitute a significant part of the cases dealt with by the Constitutional Court. 

Let the high court be the forum for seeking to mine unproven talent, not the highest court in the land.

For this reason therefore the exchanges between the JSC and Bilchitz were both instructive and helpful in seeking to develop a set of guidelines for a possible appointment of an academic lawyer. 

There is, however, one issue of principle in the interview conducted with Bilchitz that deserves comment. It appears that in 2019 he wrote an article criticising those who suggest that Israel may be an apartheid state or that it has colonial characteristics. That he was perfectly entitled to articulate his position in the manner in which he did, should in a deliberative democracy, be respected. But that he refused to engage with questions put to him about his article on the basis that he was an acting judge of the court was most unfortunate. 

This issue of Israel/Palestine, as divisive as it might be, has now dominated the South African political and legal discourse for some time. The public are entitled to know whether an applicant’s commitment to human rights is universal or selective and how they apply to a controversial case. 

It must surely be part of the evaluation of a candidate for the highest court in the country to be tested on these issues, particularly when the candidate has previously published his/her views. South Africa does not want to embark on the precedent in America where judges refuse to comment on key controversial issues such as abortion or gender rights on the basis that on some unspecified occasion these might be brought before a court in which the applicant is a judge. And as to a pending case precluding comment as the South African ICJ case has nothing to do with the Court, an acting stint is no obstacle to the answers requested in the interview.

The other important consequence of the interviews relates to the workload of the Court. It is overwhelmed by petitions seeking leave to appeal and it is increasingly slow in providing its judgments. (see Daily Maverick, 24 March 2024)

A constitutional amendment to ensure that a small panel of justices rather than the full Court can deal with petitions is both needed and is urgent. But vacancies on the Court also need to be filled expeditiously. If there are acting appointments to be made, experienced judges with a definite record of expeditious delivery of judgments should be appointed. 

Let the high court be the forum for seeking to mine unproven talent, not the highest court in the land. That Court needs all experienced hands on deck if it is to retain its efficacy and hence legitimacy. DM