Unspoken judgment

The Constitutional Court is the pinnacle of our legal system and a seat at its gently curving table ought to be the most eagerly sought honour in any judicial career.

It is astonishing then that a vacancy at the court—a rare opportunity to shape the contours of the constitutional dispensation—should attract just two applications, too few to meet the requirements for proper adjudication by the Judicial Service Commission.

Effectively, the post has now been readvertised.

It is not as though there are no suitable judges on the benches of the high courts, Labour Court, Competition Appeal Court and the Supreme Court of Appeal. And it certainly is not as though they lack ambition.

So what is going on?

It cannot be the prospect of scrutiny during the commission process. The new chief justice, Mogoeng Mogoeng, was the subject of both sycophantic flattering and tough questioning during the hearings that got him the job but in the end, the process was divided neatly along political lines and there was little space for a truly rigorous examination of his record and his judicial philosophy. If anything, candidacy for high judicial office should come with more scrutiny.

But a more likely reason is that too many judges and lawyers now feel that appointments are made without a rational consideration of all the relevant factors, or worse, that they are prearranged by the big powers within a commission that is heavily tilted toward politicians, most of whom are drawn from the governing party.

A sometimes confused and inconsistent approach to the application of transformation principles has not helped matters.

The credibility of the commission is crucial to the credibility of the courts more broadly and its erosion is not only depriving us of legal talent but also weakening the foundations of the system.

The case for reform to strengthen the procedures of the commission and to ensure that the balance of political and professional considerations is correctly struck has never been more urgent.

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