JUDITH FEBRUARY: Time for inventive leadership to fill vacancies for ConCourt judges

The Judicial Service Commission (JSC) held its first sitting for 2025 last week. Described as a "small but significant affair", the JSC spent just one day interviewing candidates for positions on the Electoral Court and the Labour Court.

The commission also discussed the stats of several complaints against judges.

The interview process normally lasts far longer – at the JSC’s previous sitting, in October 2024, the interviews spanned two weeks. This highlights a major challenge facing the JSC, and by extension South Africa’s judiciary – namely, the number of important judicial vacancies which continue to be unfilled.

The problem is most apparent at the country’s highest court, the Constitutional Court (CC). The CC has had a vacancy unfilled since October 2021, despite several unsuccessful attempts to fill it. The position was most recently advertised in May 2024, and then readvertised in July 2024.

The Constitution requires that three candidates more than the number of vacancies for the CC be chosen, from which the President makes the appointment. There were evidently not enough candidates nominated to meet this requirement, as no shortlist was produced.

This is not a new problem. For more than a decade, concerns have been raised about the scarcity of candidates for positions at the top court. And the current situation is worsening. Justice Raymond Zondo retired as Chief Justice last year, creating a further vacancy at the court.

His replacement as Chief Justice, Mandisa Maya, was formerly the Deputy Chief Justice, and the President has yet to appoint a replacement to that role. And in a few months’ time, Justice Mbuyiseli Madlanga will also retire from the CC at the conclusion of his tenure.

This means that there is a strong chance that by the middle of 2025, three of the eleven judges’ positions at the highest court in the land will be vacant, with little evidence from the JSC’s recent practice that they are likely to be filled quickly.

Appointing permanent judges to the court is important because the court had been experiencing major challenges in handling its workload, with the court seemingly struggling to process increasing numbers of applications for leave to appeal.

While there are a range of other factors which are likely to contribute to this situation, it cannot help that the CC has not had its full complement of judges for so long.

Gaps at the court are filled by appointing acting judges, but this is not an ideal solution. Acting judges remain with the CC for a short period of time before returning to their ‘home’ court, which hinders the building of experience and collegial working practices that attach to permanent judges. Acting judges are also appointed through a less open and transparent process than permanent judges, raising potential concerns about judicial independence.

Some efforts have been made to address the lack of candidates for the CC. In 2023, then-Chief Justice Zondo announced an initiative to address the lack of candidates for the CC by giving acting experience to practising lawyers and academics, who would then be encouraged to put themselves forward for permanent appointment.

Unfortunately, the initiative did not immediately bear fruit. Three candidates identified through the initiative were shortlisted for the JSC’s April 2024 interviews, but one was forced to withdraw for health reasons, and concerns were raised about the lack of judicial experience of another of the candidates. Ultimately, no appointment could be made.

The episode illustrates the challenges facing the JSC and the leadership of the judiciary in trying to address this problem. In the CC’s early years, it was not uncommon for judges to be appointed to the court from non-judicial backgrounds – indeed, the Constitution only requires that four out of the court’s eleven judges had been judges when they were appointed to the CC.

Many celebrated jurists, including justices Arthur Chaskalson, Pius Langa, Yvonne Mokgoro, Kate O’Regan and Albie Sachs, were appointed to the CC directly from legal practice or academia.

This illustrates the historical context where the CC was a new court, and constitutional law as we now know it was effectively a new discipline in South Africa. There was an understandable reluctance for the extensive powers vested in the courts to be exercised by apartheid-era judges. Bringing in outsiders added a diversity of experience and insight which undoubtedly served the court well.

The context is now different. The CC’s jurisdiction has been expanded, meaning that it no longer functions as a specialist Constitutional Court but exercises a more general jurisdiction more akin to a supreme court.

This impacts how we think about who should be appointed to the court. Whereas before, appointing someone with limited judicial experience but extensive experience of human rights, constitutional law from other areas of practice could be justified, this argument becomes more difficult to make for a court of general jurisdiction.

There, of course, continue to be advantages to having a diversity of perspectives on the court, but scepticism about the extent of a candidate’s judicial experience is understandable.

It is not clear whether the Zondo initiative has been persisted with. Recent acting appointments suggest a swing back to giving opportunities to current judges. The pressure is now on the current judicial leadership, particularly Chief Justice Mandisa Maya, to continue to come up with creative initiatives to ensure that the gathering crisis of permanent judges not being appointed to the CC is addressed.

The Zondo initiative showed how acting appointments can be used to broaden the pool of candidates for the CC. Although it is arguably problematic for acting appointments to be used as a recruiting tool, considering the independence concerns these appointments attract, they remain an obvious tool to use to address the problem.

Whilst other factors, such as a judge’s area of expertise, are also relevant, the Chief Justice has an opportunity to target candidates who will be willing and able to make themselves available for permanent appointment.

There would also be value in continuing to follow the Zondo approach by looking for candidates outside the judiciary, whilst being mindful that such candidates would need to show significant judicial and practical experience outside the bench.

The unwillingness of candidates to come forward for what should be highly sought-after positions on the country’s highest court also places pressure on the JSC to restore credibility and confidence in its processes. In 2021 and 2023, the manner in which interviews were conducted led to litigation and to the JSC re-doing interviews.

A challenge by Freedom Under Law to the JSC’s interview process is ongoing. It is small wonder that candidates are unwilling to come forward against this background. The JSC must continue to demonstrate that, whilst its interviews must necessarily be rigorous, candidates will be able to rely on being treated fairly and respectfully, and evaluated in terms of clear selection criteria.

The JSC took a positive step at the end of 2022, when it announced extensive selection criteria. However, the application of these criteria have been inconsistent, and is the focus of FUL’s ongoing litigation against the JSC.

These are just two examples of how the shortage of CC candidates might be addressed. It is vital that the Chief Justice continue to pursue all available measures to prevent the situation from becoming worse still.