The Office of the Chief Justice of the Supreme Court (OCJ) has re-advertised a long-standing vacancy on the Constitutional Court because the number of candidates was too small to fill it. (Renata Laroyd)
TThe Office of the Chief Justice (OCJ) has reopened the call for applications for long-standing vacant posts on the Constitutional Court after the number of candidates was too low to fill the vacancies.
The nomination period ended two weeks ago and Chief Justice Raymond Zondo's office announced on Monday that it had received the names of only three applicants, meaning the Judicial System Commission (JSC) would not be able to proceed to shortlist candidates.
Under Article 174(4) of the Constitution, the Commission must prepare a list of candidates that is three more than the number proposed for appointment when making recommendations to the President.
The OCJ announced late Tuesday that it would issue another call for nominations, with applications due to reach the office by Aug. 30. The three candidates nominated so far do not need to reapply.
The JSC will be interviewing candidates in October, including for the presiding judges of the Court of Appeal and the Western Cape High Court.
The Supreme Court has repeatedly failed to fill the vacancy, which was created by the retirement of Justice Sisi Khampepe in 2021.
He was unable to make another appointment in April after commissioners concluded that one of the four nominees, constitutional law professor David Bilchitz, was ineligible for appointment.
Bilchitzu had no judicial experience beyond two terms on the Constitutional Court – part of Zondo's efforts to bring lawyers and academics to the courts with a view to potentially appointing them later.
The Chief Justice did so precisely because the JSC was experiencing difficulties in filling Khampepe's place as a judge.
Other candidates in April's election were Alan Dodson SC, who has been interviewed repeatedly for the Constitutional Court position in recent years, and Court of Appeal judges Tati Makgoba and Ashton Schippers.
Legal observers say that in recent years, JSC commissioners have harshly reprimanded candidates, often on political lines, dissuading many from running.
The tone of the interview has visibly improved under Zondo's supervision, but in April Julius Malema, the Economic Freedom Fighters leader who tried desperately to block David Unterhalter from taking the Constitutional Court seat, harshly criticised Bilchik's views on Israel.
Unterhalter was finally appointed to the Supreme Court of Appeals in May.
Freedom Under Law said the Supreme Court's lack of qualified candidates “speaks volumes about the court's appointment process and the JSC's handling of it.”
The Supreme Court's caseload has risen dramatically since its jurisdiction was expanded a decade ago, leaving it struggling to process about 350 new applications last year alone.
Deputy Chief Justice Mandisa Maya, who will succeed Mr Zondo when he retires next month, has said she believes the number of judges on the Supreme Court should be increased from 11 to 15.