Lack of candidates for Constitutional Court position

The retirement of Judge Van der Westhuizen in early 2016 has left a vacancy at the constitutional court, and while this vacancy has been advertised not enough applicants came forward in the nomination process.

We question how this could have happened:

The constitutional court is unlike other courts, in the main court one name can be put forward for the position and the President can appoint that one person.

For the constitutional court, you have to have four applicants put forward to the President, and the President then makes the final selection of a single candidate. This is set out in the constitution as follows:

174(4)

The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

1. The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.

Read more on page 87: http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-08.pdf

So the question that must be asked is why are senior justices not lining up to be interviewed for the most prestigious court in the country?

We believe that the problem lies in the fact that the system itself has a flaw. Let us say there are four top, most brilliant candidates, called A, B, C and D. And let’s say they all put themselves forward in year one , and A is appointed. All good so far.

But now we have three candidates who failed. These are the best of our best, but in this process they are made to look like failures. When the next position becomes open and we have to appoint in year two we inevitably find that candidate B is still keen, and puts themselves forward. C and D also do, as well as a new candidate E. B is appointed. C, D and E fail.

But when we find ourselves in year three, and now we want C and D to put themselves forward again after failing twice… Well that’s most likely not going to happen is it? Especially if they have heard, and these rumors are always there, that D will get it this year, or even E. Do this over and over again, and you have excellent judges who simply will not step forward as they already know that they have a strong chance of being nominated and not appointed.

The intention behind this process was that as the positions in the court are strongly political the executive needed a direct say in the appointment process, however we may have misjudged the effect of the slate of names and our feeling is that this misjudgment has now become a hurdle to appointments.

What are your thoughts on this matter? Join in the conversation on Twitter or Facebook with #JudgesMatter2016.