Acting chief justice Raymond Zondo has expressed confidence in the quality of Constitutional Court judgments despite widespread criticism of them.
Zondo was answering questions after presenting the 2020/2021 Judiciary annual report on Judiciary Day.
The report showed that of the 445 matters before the Constitutional Court in that year, only 273 were finalised during the year, a success rate of 61% compared with the target of finalised cases of 70% though Zondo pointed out that there had been a 10% increase in the caseload.
The quality of some Constitutional Court judgments has been widely criticised — even by a former judge of the court — and the instability in the court, which has a high number of acting judges, has also been highlighted.
But Zondo said the judiciary, including the judges of the Constitutional Court, appreciated that it was important to ensure that they produced quality judgments.
“Most of the time they get that right and produce judgments that are a product of hard work and a product of serious consideration, but of course it will happen that from time to time somebody will pick up some mistakes. But on the whole the overwhelming majority of judgments that are handed down by the Constitutional Court are not judgments that have mistakes or errors. The judges continue to take various steps to try to ensure that there is quality assurance in terms of the judgments that they issue.”
A judge who wished to remain anonymous told Business Day that many commentators had pointed to the fact that the Constitutional Court judgments were incoherent and “all over the place”.
“The quality of the jurisprudence has totally declined since the days of [former chief justices Arthur] Chaskalson and [Pius] Langa. Most of the judges on the court should not be there. This is because of the shocking appointments that have been made over a long period of time and the inexplicable level of acting appointments under [former chief justice Mogoeng] Mogoeng’s term. I think this is a widely shared view,” the judge said.
In a recent TimesLIVE article, law professor Ziyad Motala of Howard Law School in the US, who was a member of the panel appointed by President Cyril Ramaphosa to shortlist nominees to replace Mogoeng, criticised the “sloppy jurisprudence” of the apex court and the “prattle of nonsense” apparent in some of its decisions.
Council for the Advancement of the SA constitution executive secretary Lawson Naidoo said it was a matter of concern that there were so many vacancies (five) on the Constitutional Court for such a long time. There had been no movement on the five names submitted to Ramaphosa for the appointment of two judges.
Ramaphosa referred the five names to the Judicial Service Commission (JSC), which will only meet again in February. The posts of two further judges have been advertised for nominations and then there is the vacancy caused by the departure of Mogoeng. The JSC will only consider the list of four nominees for that position referred to it by Ramaphosa in February.
“When you have a prolonged period of acting appointments at the Constitutional Court — where almost half the judges are in an acting capacity — this does create a sense of instability in the court. The concern is with the delays in the filling of vacancies,” Naidoo said.
Questioned about whether he thought the system of appointing judges through the JSC should be reformed in the light of the recent politicisation of the process, Zondo noted that over the years, some people had expressed views about the need for reforms to be made to the manner in which judges were appointed.
“At this stage I would not call for any reforms in terms of the constitutional arrangement. I think it is more important that we try not to tamper with the constitution unless we get to a point where it is really serious. At this stage I would not be calling for any reform in terms of the manner in which judges are appointed.”
Naidoo said he believed there needed to be a review of the composition of the JSC in terms of the representation of politicians on it, which had to go hand in glove with the JSC establishing firm criteria for the appointment of judges, so that they evaluated them all against a set of objective criteria. That would limit the scope for politicisation.
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