A Shortage of Justice(s) and Expertise at the Constitutional Court
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Earlier this year, the Judicial Service Commission (JSC) concluded yet another round of gruelling interviews as it sought to fill the long-standing vacancy at the Constitutional Court of South Africa. Regrettably, the JSC failed to make a recommendation to the President after the interviews, and the Court remains a Justice down.
The Court has not been fully staffed since 2016 and has relied on regular acting appointments to fulfil the quorum requirements of section 167 of the Constitution. Another vacancy will open at the Court later this year when Chief Justice Zondo retires. Despite these pressures, the JSC once again subjected hopeful applicants to characteristically brutal interviews, only to conclude that one of the four (impressive, experienced and highly-qualified) interviewed candidates was unsuitable and that it accordingly could not nominate four candidates as required by section 174(4) of the Constitution.
This recent example of the JSC interviews amounting to no more than futile public (and at times, hostile) interrogations of respectable South African legal minds is just a recent instalment in what has become an increasingly fraught judicial appointment process.
The South African legal community should be alarmed for several reasons: political grandstanding, scandal and inconsistency have become prominent features of JSC interviews. In particular, the politicisation of the process and the vituperative and often unjustified and unsubstantiated attacks on the character of applicants pose great threats to the credibility of the judiciary.
Of greater concern, however, is the curious absence of fairness, consistency, and a clear commitment to the constitutional imperative to appoint judges who are ‘appropriately qualified’ and ‘fit and proper’. These factors ought to be present in the appointment processes for all courts, but their importance cannot be overstated in the context of appointments to the Constitutional Court which, as the apex court, enjoys far-reaching and significant powers.
Indeed, the Seventeenth Amendment to the Constitution transformed the Constitutional Court from a specialist in constitutional matters to a generalist appellate court. Following this, the Court has demonstrated ample willingness to accept its newfound role as the super appellate court in all areas of South Africa’s law. Yet, the limits supposedly imposed on the Court’s jurisdiction by section 167(3)(b) of the Constitution have developed and evolved through a jurisprudence riddled with inconsistencies.
The upshot of this is that it is very difficult, if not impossible, to predict with any degree of certainty whether a matter falls within the illusory limits of the Court’s jurisdiction. The Court has also been criticised in recent years for becoming increasingly inefficient, poorly managed, and seemingly incapable of managing its growing caseload.
My concern, however, is that one of the greatest challenges facing the Court is that it has demonstrated a lack of suitable judicial expertise to adjudicate appeals in complex and specialised legal domains.
I argue that it is problematic that the Court acts as a generalist court of appeal over decisions of specialised courts, especially when those decisions require engagement with complex factual assessments that fall outside the realm of the Court’s expertise. This is demonstrated by a comparison of the Court’s jurisprudence and experience in the specialised areas of labour law and competition law.
This comparative exercise indicates that in areas where the Court possesses expertise similar to what is statutorily envisaged for the relevant specialist courts, such as labour law, it has contributed positive developments that have given content to constitutional rights. It has achieved this by rectifying judgments of the Labour Court which set incorrect and confusing precedents about the rights of workers involved in labour litigation and retrenchment exercises, and by ‘situating the imperative to curb sexual harassment in the workplace at the heart of the interpretation of the Labour Relations Act’.
On the other hand, the Court’s jurisprudence in competition law is a disturbing indication of the shortcomings of the present system. Specifically, in a series of recent judgments, the Court, without acknowledging or, in some instances, overcoming its limited competition expertise, has overturned expert factual and economic findings of the competition courts. In the process, this has created uncertainty and undermined the legislative intent of the Competition Act.
“…political grandstanding, scandal and inconsistency have become prominent features of JSC interviews.”
I have argued that this conundrum needs to be remedied through deliberate interventions to enhance the Court’s competition expertise, but as the ‘super appellate’ court, the reality is that it needs to be equipped to decide matters across a vast range of specialised and complex areas of the law.
This is not an imperative to be underemphasised. After all, the Court is enjoined to constitutionalise all of South Africa’s law. It is untenable to suggest that there are any areas of law, no matter how complex and specialised, that can be beyond the Constitution’s supreme reach. However, the ‘constitutionalisation’ project necessitates competence and an understanding of the relevant impugned law. Constitutional expertise is crucial, but it is no substitute for expertise in the area being constitutionalised.
While there is no panacea for solving the conundrum of the disproportionality between the Court’s powers and its expertise in specialised matters, a rational place to start is with the next permanent appointment to the Constitutional Court.
Obviously, the JSC must assess candidates in terms of section 174 of the Constitution. It must accordingly consider the ‘need for the judiciary to reflect broadly the racial and gender composition of South Africa’. However, crucially, the criteria that the incumbent Justice be ‘appropriately qualified’ must be understood within the current context, in which there is a deficit of expertise in commercial and private law at the Constitutional Court.
Against this backdrop, it is baffling that the JSC has repeatedly overlooked candidates who possess such expertise and experience. A prime example is Judge David Unterhalter. Despite his exceptional reputation as “one of South Africa’s top lawyers” and his depth of expertise in competition law, commercial law and public law, he was repeatedly rejected by the JSC.
Although he finally succeeded in being appointed to the Supreme Court of Appeal in May this year, his many previous rejections raised suspicions over the criteria that the JSC applies when assessing candidates, with some going as far as suggesting that the only plausible explanation is that the JSC has a personal vendetta against Judge Unterhalter. While the latter view is cynical, it points to the underlying issue: why did the JSC repeatedly snub a well-respected “gifted jurist and constitutional lawyer” who possesses the very expertise that the Court so badly needs?
This is not to suggest that the JSC ought to seek to make expert appointments, as it is unclear where this duty would start and end given the vast range of legal specialities. It is simply to say that the JSC would do well to place the expertise of the Court at the centre of the appointment process in the future. After all, a “Super Court” surely requires “Super Judges”.