Zondo’s office re-advertises vacancy at the constitutional court

The office of the chief justice (OCJ) has re-advertised a long-standing vacancy at the constitutional court after receiving too few nominations for the position to be filled.

The nomination period closed a fortnight ago, and Chief Justice Raymond Zondo’s office said on Monday that having received the names of only three applicants, the Judicial Service Commission (JSC) could not proceed to shortlist candidates for the position.

In terms of section 174(4) of the Constitution, the commission must prepare a list of nominees with three names more than the number of appointments to be made when making a recommendation to the president.

Late on Tuesday the OCJ advised that it was issuing another call for nominations, saying these should reach the secretary by 30 August. The three candidates who were nominated so far, need not reapply.

The JSC will interview candidates in October, along with those nominated for positions at the appellate court and the Western Cape high court, including the judge president of the division.

It has repeatedly failed to fill this vacancy created by the retirement of Justice Sisi Khampepe in 2021.

It was again unable to do so in April, after commissioners concluded that one of the four candidates, constitutional law professor David Bilchitz, was not suitable for appointment.

Bilchitz had no judicial experience apart from acting at the constitutional court for two terms. This was part of an initiative on Zondo’s part to invite advocates and academics to act at the court, with a view to later availing themselves for appointment.

The chief justice did so precisely because of the difficulty the JSC has experienced in filling Khampepe’s seat at the court.

The other candidates in the April round were Alan Dodson SC, who has repeatedly interviewed for a position on the constitutional court in recent years, and appellate court judges Tati Makgoba and Ashton Schippers. 

Legal commentators have said the manner in which candidates have been harangued, often on politics, by JSC commissioners in the recent past have deterred many from availing themselves.

Although the tone of interviews has improved measurably on Zondo’s watch, Economic Freedom Fighters leader Julius Malema, who did all he could to deny David Unterhalter a seat on the constitutional court, in April tackled Bilchitz on his views on Israel.

Unterhalther was finally appointed to the supreme court of appeal in May.

Freedom Under Law has described the dearth of suitable candidates for the highest court as “telling of the process of appointing judges to the court and the JSC’s handling of the same”. 

The caseload of the highest has increased dramatically since its jurisdiction was expanded a decade ago and has been struggling to deal with a backlog of new applications, of which it received some 350 last year alone. 

Deputy Chief Justice Mandisa Maya, who will succeed Zondo after he retires next month, has said she believes the number of judges of the court should be increased from 11 to 15.