Capacity: Professor (University of Johannesburg/ Reading University)
Admission as attorney: 2007
Gender: Man
Ethnicity: While
Date of Birth: September 1975
Qualifications: BA cum laude (1996), BA(Hons)(1997), LLB cum laude (1999)(Wits); MPhil (2001), PhD (2004)(Cambridge University, UK)
Key publications:
- Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford University Press: Oxford, 2007).
- Socio-Economic Rights, Economic Crisis and Legal Doctrine (2014) 12 International Journal of Constitutional Law 710-739.
- ‘Fundamental Rights as Bridging Concepts: Straddling the Boundary Between Ideal Justice and an Imperfect Reality’ (2018) 40 Human Rights Quarterly 119-143.
- Fundamental Rights and the Legal Obligations of Business (Cambridge University Press: Cambridge, 2021).
Candidate Biography (updated April 2024):
Professor David Bilchitz is a professor of fundamental rights and constitutional law at the University of Johannesburg.
After the Judicial Service Commission failed for the third consecutive time to attract the minimum of four candidates to fill a single judge vacancy on the Constitutional Court, Chief Justice Raymond Zondo announced, on the sidelines of a JSC sitting, a “new approach” to attracting candidates.
Initially coy on what this ‘new approach’ was, Zondo later explained that it would entail recruiting senior legal practitioners and senior law professors to serve as acting justices on the Court, with the understanding that they would later put themselves forward for permanent appointment (section 174(5) of the Constitution only requires 4 members of the Court to have been judges prior to their appointment). Human rights professor David Bilchitz was the first law professor recruited under this ‘new approach’ .
Bilchitz served on the Constitutional Court in the fourth term of 2023 and the first term of 2024. While both terms were busy, the Court has not yet produced judgments, and certainly not ones on which Bilchitz’s acting stint can be assessed.
However, Bilchitz’s service on the Court also coincided with the period where Zondo experiment with another ‘new approach’: instead of a full written judgment, the Court will now be issuing essentially extended orders to dispose of cases. One of the first examples of this came in Rivonia Circle v President of the Republic. This was an urgent application seeking the minimum signature threshold independent candidates needed for the candidacy to be viable to be reduced. After examining the procedural steps taken by the applicants to bring their application to the Court, a majority of 9 justice found that the applicants had unreasonably delayed and therefore it was not in the interests of justices for the Court to entertain the case on an urgent basis. It therefore dismissed the case, for it to be dealt with in the ordinary court process.
In a lone dissent, Bilchitz stated that the applicants had not unreasonably delayed in bringing their case to court. Furthermore, because the case involves the infringement of significant political participation rights, the interests of justice dictate that the Court should have heard the case on an urgent basis.
After graduating with BA, BA (hons) and LLB degrees (with distinction) from Wits University, Bilchitz clerked for then Deputy President and later Chief Justice Pius Langa at the Constitutional Court. He then went off to Cambridge University in the UK to complete his MPhil and PhD degrees in law. He returned to briefly join public law consulting outfit Ashira, before starting his articles of clerkship as a candidate attorney at Ross Kriel Attorneys in Johannesburg. Upon his admission as attorney in 2007, Biltchitz left legal practice to become a full time academic and researcher.
He taught part time at Wits University (2007 – 2009), before joining the University of Johannesburg (UJ)’s Law Faculty as associate professor (2010 – 2012) and full professor (2012 to date). There he lectured Constitutional Law (Bill of Rights) and Jurisprudence at undergraduate level, while redesigning and teaching the LLM (Human Rights) course. He’s also supervised LLM and PhD dissertations at both Wits and UJ, and served as external examiner at numerous universities abroad.
At the same time as being full professor at UJ, Bilchitz serves as director South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), which is a unit that fosters research and other engagement between the academy and the broader legal community.
Bilchitz holds a prestigious B1-rating from the National Research Foundation, which is a peer-reviewed rating awarded to internationally acclaimed researchers for the global impact of their research. Bilchitz is recognized as one of the leading thinks on fundamental rights around the world.
Bilchitz has authored 2 monographs on fundamental rights published internationally; 5 edited books on constitutional law, business and human rights, and transitional justice; a textbook on jurisprudence; 27 book chapters; 41 academic journal articles; and several conference papers, book reviews and commissioned expert reports.
In 2007 Bilchitz published the monograph Poverty and Fundamental Rights: the Justification and Enforcement of Socio-Economic (Oxford University Press). The monograph made the case for judicial review of social and economic rights, recognizing them as equally foundational as the civil and political rights. It also argued that there should be a ‘minimum core’ for socio-economic rights, which would entitle people to a basic amount of a human right like water, food, healthcare and housing. Many of the arguments in the monograph have been put before courts around the world, including the South African Constitution Court which, in the 2011 Mazibuko case, rejected the minimum core argument in favour of the reasonableness standard to meet socio-economic rights.
In 2022 Bilchitz published another monograph, Fundamental Rights and Legal Obligations of Business (Cambridge University Press, UK). This monograph argues for a ‘multifactoral approach’ in defining human rights obligations of business corporations. In the book Bilchitz argues that business corporations not only have obligations not to harm fundamental rights but must also contribute actively to the realisation of these rights. The monograph also considers the implications for reforms to company law and international law to meet the obligations corporations have towards fundamental rights.
Bilchitz holds a number of positions internationally. In addition to visiting professorships in Germany and Singapore, he is a part-time professor at the University of Reading, UK (2020 – present), a member of the Society of Legal Scholars, UK (2022 – present), and serving as the Secretary-General (2013 – 2020) and later Vice President (2020 – present) of the International Association of Constitutional Law. In the latter role, he was head of the Local Organising Committee of the first World Congress of Constitutional Law to be held in Africa.
An active member of the Jewish Community, Bilchitz was a member of the Jewish Democratic Initiative (2017 – 2021). He was the brains behind the creation of the Limmud South Africa (whose mission is to “allow each Jew to take one step further on their Jewish journey”) and served as the chair of the Limmud International Steering Group (2014 – 2016). He was vice chair of the Beit Emanuel Progressive Synagogue (2013 – 2014), and remains a member of its management committee, including as head of its Rabbinic Search Committee (2023-2024).
Known as a ‘militant’ vegan, Bilchitz is one of the pioneers of the ‘animal law’ movement in South Africa, and director on the board of non-profit Animal Law Reform South Africa.
While Bilchitz is no doubt a trailbrazing giant of the academic world, his experience of legal practice is limited. Other than his brief stint as an acting justice of the Constitutional Court, he also has very limited judicial experience. Some may view this as a disadvantage to someone who aspires to sit on South Africa’s apex court, reviewing the work of experienced judges.
However, many yet may view his broad academic approach as an advantage, as he is not trapped in the ossified thinking that sometimes besets judges who’ve only worked in the court system for long periods. Indeed, some may view it as the Court returning to its roots. After all, there has never been an academic lawyer on the Court in over 15 years, even though the Constitution itself requires that there be a minimum of only 4 Court members who were previously judges.
The JSC will have to grapple with these questions and more – as this will be first time in the 2019-2024 JSC will be interviewing a non-judge for the Constitutional Court.
April 2024 JSC Interview
