Three non-judges have been approached to act as judges at the Constitutional Court ahead of Judicial Service Commission (JSC) interviews in April 2024: senior counsel Alan Dodson and Matthew Chaskalson, and professor of constitutional law and human rights David Bilchitz.
TimesLIVE Premium has confirmed these names with three independent sources.
Last week chief justice Raymond Zondo announced on the sidelines of JSC interviews that non-judges would be considered for appointment at the Constitutional Court, for the first time in decades. Zondo said though the long-standing practice had been to appoint judges who had come up “through the ranks” to the court, he had concluded it is necessary to take a different approach. This is because the JSC has been struggling to get enough candidates to shortlist for the apex court.
In April, the JSC advertised but was unable to get enough suitable candidates to shortlist. In terms of the constitution, the JSC must interview at least three more candidates than the number of posts it is seeking to fill. In October the commission did not advertise for the post because of fears that the same thing would happen, said Zondo.
The three would follow in the footsteps of the legendary advocate Sir Sydney Kentridge, who was the last non-judge to act at the Constitutional Court in 1995.
Zondo said last week he told those he had approached — he would not be drawn on their names — that “it is important they should make themselves available for appointment in April. Because this is investing ... I wasn’t so keen to give acting appointments to people who just want to put it in their CVs.”
This suggests that the three may make themselves available to be interviewed in April for the Constitutional Court. But the chief justice also said he has announced the new development in the media so it can be publicised — so that “people that are properly qualified can begin to think about making themselves available; because the post that is vacant will be advertised for April.
“And it would be good if the JSC would be spoilt for choice.”
Dodson, who was a judge of the land claims court from 1995 to 2000, has previously thrown his hat in the ring for a Constitutional Court position. In June 2022 he was one of the four names recommended for appointment but he lost out to Owen Rogers.
He has also acted in the high court and in the labour court, and is a specialist in constitutional law and administrative law, particularly in the law on land restitution. Dodson was admitted to the bar in 2001 and took silk in 2011.
Chaskalson is a highly respected senior counsel whose practice specialises in constitutional law and administrative law. He was admitted to the bar in 1993 and took silk in 2009. A founder member of the Victoria Mxenge group at the Johannesburg bar and later the Pan African Bar Association of SA, Chaskalson was one of the evidence leaders at the Marikana commission.
He was one of the editors of the most famous constitutional law textbooks in SA, which for years was known among lawyers as “Chaskalson et al” — because among the editors his name was alphabetically first.
Bilchitz is professor of fundamental rights and constitutional law in the faculty of law at the University of Johannesburg (UJ) and is director of its centre, the SA Institute for Advanced Constitutional, Public, Human Rights and International Law.
He has written two books as sole author, has four co-edited books, one textbook, 25 book chapters and 41 journal articles. According to his biography on UJ’s website, his writing “covers a range of topics [including] writings on proportionality, socioeconomic rights, business and fundamental rights, the separation of powers, the rights of non-human animals, the tension between religion and equality and LGBT+ rights”.
He is vice-president of the International Association of Constitutional Law and an admitted attorney.
Zondo said last week another motive for appointing non-judges is that JSC interviews revealed that, unless candidates were already constitutional law experts when they were appointed as high court judges, they were unlikely to become constitutional law experts on the job “as some of the candidates ... tell us that in the high court they don’t get much exposure to certain constitutional law matters”.
Zondo said he put the idea to his colleagues at the Constitutional Court and to justice minister Ronald Lamola and they all embraced it.
The idea of non-judges being appointed to the apex court is not wholly new. The constitution requires that only four of the justices at any given time must have been judges when they were appointed.
In the early days of the court, there were several non-judge appointments drawn from the ranks of senior counsel and academia, including its first leader, former chief justice Arthur Chaskalson (the father of Matthew), former deputy chief justice Pius Langa and justices Albie Sachs, Kate O’Regan and Yvonne Mokgoro.
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