JSC October 2020 sitting postponed until 2021

The JSC has postponed their sitting in October 2020, which in itself was a postponement of the April 2020 sitting, and will now only meet next year. This has a significant impact on the appointment of judges generally, and more specifically on the appointment of new Justices of the Constitutional Court Court.

The replacement of Justices Cameron and Froneman could have been dealt with in 2020, but COVID 19 has resulted in the postponement of the JSC twice. The backlog in appointments will affect all superior courts, but the impact on the Constitutional Court will be most keenly felt.

The court is already short of another Justice, in the sense that Judge Zondo is sitting on the Commission of Enquiry, so the court is sitting with 9 Justices. Two of those are acting justices, namely Justices Victor and Mathopo. This risks the court being split 5:5 on a decision, with no majority, leaving the law unclear, which has in fact happened.

With another three Justices stepping down in 2021, that would in a worst case scenario leave the court by the end of 2021 with only 6 permanent Justices out of the court’s full complement of 11 remaining, with the Cameron, Froneman, Kampepe, Jafta and Mogoeng seats empty. If for any reason Justice Zondo remains caught up in the Commission or went on leave, and his position on the court were temporarily filled by an acting judge, that would leave 6 vacancies and 5 permanent judges, with the court with a potential majority of candidates who have not actually been appointed to the court.

The JSC must interview candidates to fill all of these vacant positions, which will have to take place next year, and prepare a list of nominees with three names more than the number of appointments to be made. These are sent to the President, who must then pick his chosen candidates from the lists provided to him. The Chief Justice is appointed by a distinct process. The usual practice has been for the Chief Justice to be appointed from among the existing justices of the Constitutional Court, who are all appointed via the same process. The Chief Justice is then appointed following a specific process which gives the President a high degree of discretion.

This will leave, fortuitously, time for the Chief Justice to sit on some of the pending conduct issues in October, potentially helping to clear the backlog.