Senior lawyers and legal academics will be considered for appointment to the Constitutional Court after years of not having this opportunity. Chief justice Raymond Zondo made these says on Tuesday during the Judicial Service Commission (JSC) interviews for various court positions.
Business Day spoke to legal experts and law bodies to unpack what this means for SA’s judiciary.
Why did the judiciary make this decision?
Speaking to eNCA on Thursday, Zondo explained that “for a number of years the Constitutional Court has been struggling to attract suitable candidates in good numbers”.
The JSC, the legal body that selects and recommends candidates for all major courts, wanted candidates for the Constitutional Court but could not locate enough suitable ones in April.
In June 2022, Owen Rogers, who at the time was a judge in the Cape Town high court, was appointed to fill one of the missing seats after the retirement of judges Sisi Khampepe and Chris Jafta in 2021.
Zondo said the law does not restrict the Constitutional Court bench to only judges. However, the practice over the years in selecting Constitutional Court justices has been to give “more weight ... to judges who have gone up through the ranks”. But he noted that this gives rise to a dilemma: The Constitutional Court is supposed to have constitutional law experts on the bench and it is “unlikely” for a high court judge to become such an expert while remaining only a judge in the various courts. In contrast, he said, practitioners specialise in such areas and therefore are regarded as experts. This also applied to academics.
History and present state of non-judges on the bench
The appointment of academics is not only allowed but was evident when the Constitutional Court first came into operation in 1995.
“One of the early stars of the first court was Kate O’Regan,” Nicole Fritz, the executive director of the Helen Suzman Foundation, tells Business Day. “She was appointed from the ranks of academia without ever having practised as a judge and without an established career [as an attorney or advocate].”
Wayne Ncube, from Lawyers for Human Rights, a frequent party in landmark Constitutional Court judgments, also notes the influence of justice Albie Sachs, who never sat on a court before and was part of that first bench with O’Regan. His “academic background influenced several landmark cases”, Ncube says.
As Mbekezeli Benjamin of judicial watchdog Judges Matter points out, justice Yvonne Mokgoro, prior to her appointment in 1994, was a law professor, as was justice Johann van der Westhuizen.
Meanwhile, the first head of the Constitutional Court, Arthur Chaskalson, was a renowned advocate at the bar, having never written a judgment before his elevation to head the apex court, according to Chaskalson’s biographer, Stephen Ellmann. The first judgment he wrote as head of the court overturned the death penalty in SA.
“Because so few judges who served in the apartheid judiciary had any credibility,” UCT law professor Pierre de Vos notes, “this was a big consideration [in the mid 90s].”
SA is not alone in appointing non-judges to the highest bench. “[US Supreme Court] justice Elena Kagan was a law professor and former dean of Harvard Law, with a brief stint as solicitor-general, before her appointment to the Supreme Court,” Benjamin says. “Lord Andrew Burrows was a law professor appointed directly to the UK Supreme Court.”
Chris Oxtoby from the NGO Freedom Under Law, which has appeared in the Constitutional Court, notes that Jonathan Sumption from the UK was the first practitioner appointed to the UK Supreme Court without having served as a judge.
Implications of non-judges at the Constitutional Court
De Vos says while longtime judges no doubt have vast knowledge about various areas of the law and procedure, “they might not always have the same in-depth knowledge of constitutional law that academics have acquired over many years of study and research”. He also notes that legal practitioners, “who often represent the most vulnerable and marginalised clients, also bring insights that a person who has served for many years on the bench might lack”.
Fritz agrees “it could be a very positive development” because while there’s no shortage of experienced judges on the bench, having constitutional law experts and practitioners alongside pure judges “would mean that all these areas of skill and expertise could then be evidenced in resulting judgments”.
Constitutional law expertise from academics and practitioners, in other words, would result in better judgments. De Vos says “the court is strengthened” when it “has a variety of different people from different backgrounds”.
Considering the court has the final word on legal disputes, making rulings that change SA law, SA as a whole would arguably benefit by a broader, more enriched bench.
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