None of the four candidates for a vacancy at the apex court were in favour of merging it with the supreme court of appeal
One by one, four candidates for the single vacancy at the constitutional court have been asked for their view on resolving the issue of backlogs at the country’s highest court.
The round of interviews by the Judicial Service Commission to fill the vacancy created by the retirement of Justice Sisi Khampepe came just weeks after Chief Justice Raymond Zondo proposed a constitutional amendment to ease the case flow at the apex court.
The JSC ended up not being able to recommend sufficient candidates because one of the four candidates did not meet the requirements for appointment. It meant that the commission lacked the requisite four names to forward to President Cyril Ramaphosa from which he could settle on his choice for the court.
Zondo made the suggestion of a constitutional amendment after scrapping an initiative to use retired justices to help consider new applications to the court, which had been criticised as impermissibly outsourcing a judicial function.
Even while doing so, the chief justice did not appear convinced, saying those who objected — the Council for the Advancement of the South African Constitution — had not properly understood the legal basis on which the retired justices rendered assistance.
He raised the issue directly with aspirant constitutional court judges on Monday and Tuesday, before commissioners pressed them to elaborate on their view.
Justice Minister Ronald Lomala put to each candidate a suggestion by Justice Rammako Mathopo, in his interview for a position at the constitutional court in 2021, that it be merged with the supreme court of appeal (SCA).
“Can that help in terms of access to justice for all?” the minister asked.
All disagreed. Perhaps the most complete answer came from Alan Dodson SC, who has repeatedly interviewed for a position on the constitutional court in recent years.
“I think if something is more or less working, I don’t think one must fix it or try to change it and it is more or less working, the current system,” Dodson said.
“I think that if one looks at the adjudication of all of the respective courts at the different levels, which is something I have had an opportunity to do now while I have been acting there, each has its particular role to play.”
He said the advantage the constitutional court had was that its jurisdiction was limited in that it did not involve itself in cases where the dispute at hand was purely one of fact.
“The supreme court of appeal has the capacity to deal with those kinds of disputes and to deal with them well. And they have the additional advantage of being able to spread that work, which inevitably is a larger number of cases, across panels of the court.”
The appellate court sits in panels of three or five judges.
“I think that particularly if you look at the history of the constitutional court, it is something that arose out of our apartheid past, the parents of the Constitution as it were, wanted to have a final adjudicative body that was representative and that would make considered decisions on the Constitution and its interpretation and the legislation,” said Dodson.
“And I think it remains a specialist role of that sort in the constitutional court.”
He added that in August 2013 he was not a proponent of the expansion of the jurisdiction of the constitutional court to include matters of general public importance in addition to constitutional matters, making it the highest court in all matters.
“But I have changed my mind. Having been at the court I have seen that it can work and I think it can play a meaningful role in relation to developing the law on specific legal questions that are placed before it that go beyond purely constitutional issues.”.
The expansion of the court’s jurisdiction has dramatically increased its workload.
The deployment of retired justices Zak Yacoob and Johan Froneman was designed to deal with the backlog in processing new applications, which increased a decade ago when the jurisdiction of the court was expanded, and to allow sitting judges more time to prepare judgments. The court last year received some 350 new applications, and Zondo had hoped to draw in several of its former justices to assist in this manner.
“There are some changes that are needed though, specifically to section 167 (2) of the Constitution. What is not working at the moment at the constitutional court is the requirement that the court sits en banc also for adjudicating applications for leave to appeal, in particular,” Dodson said.
“There they should be able to have the same arrangement that the supreme court of appeal has in terms of the Superior Courts Act to be able to deal with applications for leave to appeal in small panels of two or three. That is urgently needed.”
SCA president Mahube Molemela asked Dodson whether he believed increasing the number of judges on the court beyond the current 11, which would also require a constitutional amendment, was a good idea.
Dodson said while it might alleviate the situation, he did not think it was the solution.
“I think that there is merit in that design. The numbers at the court are already more than [at] other apex courts around the world, and I like and appreciate the original conception of the court on that basis.
“What I would advocate for is the amendment to provide for panels as well as an increase in the resources of the court,” he added.
He said when the court’s jurisdiction was expanded, an increase in resources did not follow.
“I don’t think a single resource was added to the court.”
Dodson recalled a visit to the court by one of the justices of the Canadian apex court, which has nine justices and a similar caseload — in the order of about 400 cases annually.
“They have a; the ability to sit in panels as far as applications for leave to appeal are concerned and b; the ability to sit in panels as far as the hearing of actual matters that are set down are concerned. C; they have what they call the law branch assisting them.”
This referred to a team of 21 experienced lawyers who are available to the court to assist with preparing memoranda.
“That is apart from the three research clerks that each of the judges has. So the constitutional court has been left behind in terms of the provision of resources to that court and in my view that is the solution — provide the court with additional resources to recognise the expanded jurisdiction which was several years ago and urgently needs to be attended to with respect.”
Gauteng judge president Dunstan Mlambo asked whether it would help to send cases where the constitutional court granted leave to appeal, after it had been denied by the appellate court, back to the SCA to be heard. “Is there any benefit if the concourt would grant leave but refer it back to the SCA to deal with the matter? I think the CC would benefit a lot with matters that have been dealt with and determined by lower courts, in the same way that the US supreme court does things.”
Dodson replied that this was imminently sensible but it would not bring an end to the bottlenecks at the apex court because it granted leave to appeal, in his experience, in only a smattering of instances where it had been denied by the SCA.
“Most of the time the concourt is in agreement with the supreme court of appeal.”
Dodson’s call for a constitutional change supported that made by Zondo last month. The chief justice suggested an amendment to remove the requirement that the court decides new applications en banc (where all judges of a particular court hear a case), and allow it to do so in panels instead.
If new applications could be considered by panels of three judges, it would mean a two-thirds reduction in the amount of time each member of the court spent in this manner, he had argued.
The court last year received some 350 new applications.
The hand-wringing over the length of time it takes to deliver judgments — it has yet to hand down one this year — overlooks timeframes which apex courts in other countries around the world take to rule. It is not unusual in Europe, for example, for constitutional court judgments to remain pending for several years.
It speaks not only of the palpable tension — evident in Lamola’s suggestion to merge courts — there is between the executive and the chief justice, but of the sense of urgency that frequently informs constitutional court applications on issues of social justice.
Whether the court was making a tangible contribution towards creating a more equal society was a question several commissioners put to candidates in the past two days.
On Monday, constitutional law lecturer David Bilchitz criticised the established approach of applying the standard of reasonableness to steps taken by the state to ensure realisation of social rights, and argued in favour of an approach of quantifying the core minimum content of those rights.
Bilchitz said the state had limited but sufficient resources to “guarantee a minimum level that we will not accept anyone in our community to go below the line of dignity and autonomy”.
He added that this challenge was one to be met not by the constitutional court alone, but also by the executive and the legislature.
On Tuesday, Dodson disagreed when questioned on the subject by commissioner Clement Marumoagae.
“I think the jurisprudence is settled,” he said. “I think you can’t at this point in time, given the number of judgments which have applied the reasonableness criteria, start to walk back on that and I think that is all the more so from the perspective of the separation of powers doctrine.
“I think that the reasonableness standard is something that works in terms of the separation of powers. Once one strays into the notion of a minimum core, the court is much more directly addressing how resources should be allocated and ultimately that isn’t the function of the court.”
Advocate Tembeka Ngcukaitobi returned to the issue of transformative justice during the interview of SCA Judge Tati Makgoba, but with an emphasis on economic rights. He asked whether searing levels of poverty persisted because the Constitution was silent on economic redress or whether the court, or the state, was failing in this regard.
“We always talk about social justice but it seems to me that after 30 years of trial and error there is no social justice in South Africa despite the Constitution and the constitutional court.”
One could blame the court or the legislature or the executive, he said but it seemed as if “this ball of the absence of social justice keeps being pushed around”.
Makgoba replied: “We might have to look to the executive, as to whether the executive has done enough to marshall all the resources in the country to make sure this economic emancipation is realised.”
Ngcukaitobi noted that Makgoba was not applying for a position in government but at the apex court, and asked whether he believed that in the Constitution there were implied tools for adjudicating in the interest of economic liberation he would use if he were appointed.
Makgoba did not give a direct answer, but said it was deeply concerning that the economic empowerment of the vast majority remained a mirage.
“It worries me as it worries you that in 30 years we have not moved as speedily as we should have.”
The four candidates were Bilchitz, Makgoba, Dodson and SCA Judge Ashton Schippers. Advocate Matthew Chaskalson withdrew. Sources close to the process said the commission decided that Bilchitz was not suitable for appointment, meaning that the vacancy left by Khampepe could not be filled.