/ 4 February 2022

Zondo: JSC has a duty to consider white judges for constitutional court

South African Justice Raymond Zondo Hints On A Possible Extension Of The Inquiry Into State Capture
Chief Justice Raymond Zondo. (Photo by Veli Nhlapo/Sowetan/Gallo Images via Getty Images)

Acting Chief Justice Raymond Zondo on Friday said the Judicial Service Commission (JSC) was obliged to consider the racial composition of the constitutional court — and the fact that there were currently no white judges on that bench — when weighing who to appoint to fill two present vacancies.

The comment came in Zondo’s interview with the JSC for the position of chief justice and two months ahead of the next round of interviews where the candidates will again include David Unterhalter and Alan Dodson.

Both were twice overlooked last year for recommendation by the JSC, sparking controversy because of their stature in the legal community.

“When this body considers the interviews with candidates for the concourt in April, this body will have an opportunity to decide whether it places before the president for his decision some white candidates to enable him to appoint one or both or fill one or both vacancies with white judges,” said Zondo.

“But that is a constitutional imperative that this body is enjoined to consider each time it considers these matters and I have no doubt it will consider it and make its judgment call.”

The constitutional court has not had a white judge in its ranks since Justice Johan Froneman retired in 2020. Justices Edwin Cameron and Johann van der Westhuizen retired in 2019 and 2016 respectively.

Zondo also said there were still not enough women on the bench and there were still too few black lawyers working in certain speciality areas of the law.

He was asked about it by Judge Xola Petse, the deputy president of the supreme court of appeal, who is chairing the JSC as it interviews four candidates for the position of chief justice. Over the past three days it has interviewed constitutional court Justice Mbuyiseli Madlanga, SCA president Mandisa Maya and Gauteng Judge President Dunstan Mlambo.

Zondo stressed that he did not believe that “I am automatically entitled to be appointed chief justice” and did not see himself as superior to the other three candidates but had tremendous respect for them.

He said he believed that a chief justice must make a contribution to the development of jurisprudence but be humble enough to understand that holding the position did not mean he was “the most brilliant” member of the bench. 

Zondo struck this tone from the outset of his interview and paid tribute to lawyers who argued cases that resulted in rulings that developed jurisprudence. He said he thought he would point out, for the benefit of the public, that where he and other judges pen judgments considered groundbreaking, the legal counsel involved often did the intellectual “spade work” that informed these.

Asked to spell out what he would prioritise if appointed, Zondo said he would consider it a duty to seek to ameliorate problems hampering the functioning of all courts in the country, including the apex court.

“I think that the chief justice should also be concerned about what is happening in all the courts of our country… if they are not functioning properly, what are the problems.”

Regarding complaints about delays at the constitutional court, Zondo recalled that the issue was raised sharply in October when the JSC last interviewed candidates for vacancies at the apex court and that he undertook at the time to look into it.

On new applications to the court, he explained, as Madlanga eloquently did on Tuesday, that the court had taken a decision recently to end the roster system that often left two duty judges overburdened and created a bottleneck.

“It might be early days but it seems that it is going to make a difference.”

On reserved judgments, Zondo it was a simple reality that the fact that the constitutional court sat en banc meant it would not rule as rapidly as high courts or the appellate court could.

“Two things are expected of the constitutional court. One is that it should not delay unduly in giving its judgments. Two … being the highest court and the final court, it must give guidance to the rest of the courts on important legal issues, so you have to strike a balance,” he said.

“You can’t say, if I see this matter in a certain way and my colleague sees it differently, I don’t care, they must write, I will write my own judgment, because you are going to end up with five judgments, with seven judgments in one matter and that is undesirable … 

“So you have to talk to one another and see if you can reach agreement, and sometimes those discussions take long. The important thing is to strike a balance between not taking too long trying to reach agreement but at the same time not being dismissive of other colleagues’ views just because you are in a rush that the judgment must be out.”

Sometimes the balance was not reached, he conceded.

Zondo said he had asked his colleagues to consider whether the court should not work on the premise that, because a quorum at the court was eight judges, those who had reserved judgments “beyond a certain time” should not be asked to finish those without sitting in further matters.

“We may have to consider whether we should not do that in order to deal with the backlog and to avoid having more backlogs.”

Like Maya, he also suggested that there may be a need to amend the Constitution to allow the apex court to sit in smaller panels on certain matters.

“So we say in regard to certain matters, three judges can deal with that matter and dispose of it. If we do that a lot of matters could be disposed of much quicker, in the same way as in the supreme court of appeal.”

More widely, Zondo said he would like heads of court and the legal profession to reconsider the need to initiate proceedings by actions, so as to resolve matters faster.

“All those who are lawyers and practice will know that if you are dealing with applications, applications tend to be dealt with quite expeditiously, but if you talk about trials they take a long time,” he said.

“I know that as lawyers you might like trials because they give you a chance not to disclose everything, not to disclose your full evidence but it may be that the time has come for us to say that in order to ensure that there is expedition in the disposal of cases we must take the attitude that if you want to initiate proceedings, collect all your evidence, do all your investigation, put it on affidavit and let it be known what your case really is. Let the other side know and let them do the same and let the court decide whether it is necessary to have some or limited oral evidence or not.”