Starting this week, the Judicial Service Commission (JSC) will be interviewing candidates for top judicial vacancies in the Constitutional Court, Electoral Court and incoming Land Court.
Hearings for the Supreme Court of Appeal (SCA), SA’s second-highest court, will be held next month, after the JSC’s controversial decision last year not to fill vacant seats, despite the availability of qualified candidates, was challenged by legal bodies.
The one Constitutional Court vacancy will be the first focus of interviews on Monday. A range of candidates will be interviewed for it.
These include senior advocates Alan Dodson and Matthew Chaskalson (son of the first chief justice of the Constitutional Court, Arthur), and professor of constitutional law David Bilchitz. All are nonjudges.
All three were appointed to acting positions at the apex court last year and sat into this year, the first time in decades that nonjudges have sat on the apex court. There is no legal requirement that judges of the apex court must be judges before appointment, but it became practice to appoint members from among judges’ ranks.
Some of the first judges of the Constitutional Court, such as Kate O’Regan and Yvonne Mokgoro, came from academia. The first judgment that came out of the Constitutional Court, in 1995, was written by acting judge Sydney Kentridge, a renowned advocate.
The nonjudges will be up against senior SCA judges Ashton Schippers and Tati Makgoka. Both started their SCA terms in 2018.
Schippers is notable for handing down the SCA’s decision in the famous “SA flag” case, concerning whether displaying the apartheid flag constituted hate speech. Schippers, writing for the majority, held that it was.
Regarding Makgoka, judicial watchdog Judges Matter notes that Makgoka’s dissenting minority judgment in an SCA case, regarding whether Clicks was in violation of pharmacy regulations, was upheld on appeal by the apex court, a position on which he is now seeking.
Hlophe and the Constitutional Court
However, Judges Matter also notes that Makgoka sat on the judicial conduct committee that found against impeached Western Cape High Court judge-president John Hlophe.
The committee found him guilty of gross misconduct in trying to influence Constitutional Court judges improperly in cases involving former president Jacob Zuma in 2008.
As a result, Hlophe became the first judge in SA to be impeached, after a parliamentary vote for his removal in February 2024. Hlophe had lodged various challenges, including a pending one at the apex court, against parliament going through with the impeachment vote.
Many judges, including Makgoka and the chief justice, have throughout the years either sat in cases or were part of bodies that were against Hlophe over the misconduct findings.
As a result, the apex court wrote last week to Hlophe and other parties regarding his pending challenge, noting that seven of the sitting Constitutional Court judges believe “they may have reason to recuse themselves” in the case. The court has 11 judges.
If there are fewer than eight judges, the court would not be quorate and thus cannot hear the matter. “The case will most likely be dismissed,” Mbekezeli Benjamin of Judges Matter told Business Day.
However, he pointed out this had happened before in 2012 when Hlophe brought an appeal to the apex court over complaints against him regarding his 2008 conduct. At the time, many of the Constitutional Court judges themselves were the complainants. Because of this “the court declined to hear the case”, said Benjamin.
If this happens again now, “parliament’s decision to initiate the impeachment process, which Hlophe challenged, stands”. He would therefore remain impeached.
However, Benjamin said many of Hlophe’s concerns “have already been ventilated and the [full bench of the Johannesburg] high court has given a comprehensive judgment on them [in 2022]”. Hlophe can also reinstate an appeal at the SCA he did not pursue.
“He is not out of options,” Benjamin said if the court declines to hear the case. The court has not yet made its decision.
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