Constitutional Court. Picture: SOWETAN
Constitutional Court. Picture: SOWETAN

The Constitutional Court will have three vacancies on its bench if President Cyril Ramaphosa does not make appointments before justice Edwin Cameron retires in August. 

Ramaphosa is yet to make any appointments to the bench of the apex court since he was elected president in February 2018 after former president Jacob Zuma was forced to resign from office.

These appointments, which are made by Ramaphosa,  are critical, as the members of the court are seen as the guardians of SA's constitution.   

The top court has 11 permanent members on the bench, but the positions left vacant by the promotion of deputy chief justice Raymond Zondo to his current position in March 2017, and the retirement of justice Bess Nkabinde in December 2017,  are yet to be filled. 

The court also recently announced that Cameron would retire on August 20, which is less than a month away, and which opens up the possibility of three vacancies on the bench. 

Zondo, chief justice Mogoeng Mogoeng’s second-in-command, has also been appointed to head the commission of inquiry into state capture until March 2020 when it is set to finish its report.

The Judicial Service Commission (JSC) submitted a shortlist to Ramaphosa at the beginning of April 2019 after it interviewed six candidates.   The shortlist has five candidates: judges Annali Basson, Patricia Goliath and Jody Kollapen, as well as Supreme Court of Appeal justices Stevan Majiedt and Zukisa Tshiqi.

Khusela Diko, Ramaphosa’s spokeswoman, on Tuesday said the president had met Mogoeng on the matter  and that he was applying his mind.  

The Constitutional Court has had multiple acting judges over the past two years in positions left open by Zondo and Nkabinde. 

In the most court's most recent judgment, which ordered public protector Busisiwe Mkhwebane to pay for legal costs in the review of the report on the apartheid-era loan from the SA Reserve Bank to Bankorp and in which her conduct was found to have been in bad faith, four of the ten justices who heard the case were acting. 

Alison Tilley, co-ordinator for Judges Matter, said the use of acting judges was “very problematic”, as security of tenure of judges was an essential part of the independence of judges. She said  there was a difference between a decision made when a person is secure in a decision and when the person is not. 

Tilley said the next round of interviews at the JSC will be held in October, but that it would not be possible to advertise Cameron’s vacancy before then. The earliest opportunity to interview for the vacancy left by him will be in April 2020.

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