JSC interrogates David Bilchitz in all-day interview for top court seat

Professor David Bilchitz — the first academic to be interviewed for the Constitutional Court in “many, many years”, said chief justice Raymond Zondo — was grilled by the Judicial Service Commission (JSC) about his lack of judicial experience, in a marathon interview on Monday. 

The JSC was set to interview four candidates for appointment to the apex court on Monday. By 4.30pm, Bilchitz was still being interviewed, with commissioners repeatedly asking him about the fact that he had never acted as a judge before.

Commissioner Julius Malema likened it to joining a church and “the next thing you are asking is: where are the pastors sitting? Just on arrival. Don’t you think that is unheard of?” 

But Zondo intervened and said Bilchitz had been “minding [his] own business” as an academic when he got a call from the chief justice asking him to act on the Constitutional Court.

Zondo said he had told Bilchitz, when he had invited him to act on the Constitutional Court, that he had asked for a commitment to make himself available for appointment.

Academics 

Earlier Bilchitz had said academics had a “different form” of experience to offer to the apex court.

“And the question I suppose ... for this commission will be, is that experience something one regards as important?”

He said the academy offered a “breadth of perspective” — exposure to a range of legal systems and constitutional cultures. Academics also engaged all the time with young people and offered a “degree of depth of thinking” — looking at the philosophical questions that underlie the constitution. 

Bilchitz has been acting at the Constitutional Court since February but has, as yet, not delivered a judgment.

Supreme Court of Appeal president Mahube Molemela said a candidate’s judgment track record was “one of the indicators of ... the ability to produce work of good quality under pressure”, she said.

She asked for examples of work he had produced under pressure. He said he had continued to write books while he taught and organised conferences. 

Tough questions

Bilchitz ran a gauntlet of tough questions.

He was asked about his mentoring of black and women academics and said at the institute he directed a programme that had an “all-black team, mostly female, over the last period” and he had recently co-published with a black woman.

He was asked about a 2019 article published in the SA Jewish Report, in which he called on South African Jews to “listen to, acknowledge and engage with Palestinian narratives and their pain and suffering, as they must with ours”.

But in the article, Bilchitz refers to “a raucous Boycott, Divestment and Sanctions (BDS) movement that seeks to portray Israel as similar in nature to apartheid SA. The comparison makes no sense for anyone who considers the different origins of these conflicts”.

The article also said the BDS movement “denies a Jewish story around Israel and adopts wholesale a single narrative framework that portrays the Jewish return to Israel simply as a form of colonialism”. 

Commissioner Mvuzo Notyesi asked him if he was aware of a 2004 decision of the International Court of Justice, which found that the construction of the wall in Israel was tantamount to a de facto annexation.

Bilchitz then asked for guidance from Zondo about whether he could comment on this issue, given that he was currently a sitting judge of the Constitutional Court.

“I am very happy to defend what my views are, but I’m not sure that I’m entitled to do so,” he said.

At first, Zondo said he didn’t have to answer if he felt uncomfortable.

But when Bilchitz said to answer would be to “wade into a highly contested engagement of history and politics”, which was not appropriate for a sitting judge, this was met with a follow-up by Malema, who said Bilchitz wrote the article.

“It will be our interpretation that you are saying Israel is not a colonial occupier. And if he says I’m not going to comment on that, that remains our opinion,” said Malema. Zondo then cleared the room so the JSC could deliberate and decide on how to proceed.

On everyone’s return, Zondo said the commission’s decision was that Bilchitz had written the article and that clarification was being sought to determine “what weight, if any,” should be given to the article for purposes of deliberations.

Zondo said to Bilchitz he would not be forced to answer if he was not comfortable, but commissioners might then “deal with the matter without the benefit of your clarification”.

Asked again, Bilchitz would not be drawn on whether he thought Israel was a colonial settler in Palestine, or an occupying state. But he said his work was consistently about trying to find a way through the conflict and being a peace-builder.

Socioeconomic rights

He was also grilled by commissioners about his criticism of the Constitutional Court’s approach to socioeconomic rights, and his view that the court should have adopted a “minimum core” approach — that when it comes to socioeconomic rights, such as the right of access to water, housing and health care, “we need to define, as South Africans, a minimum level of access to these goods that everyone can have, and below which we do not believe is acceptable”.

Though favoured by some academics, the Constitutional Court has rejected this approach and — after debating the merits of the minimum core approach with several commissioners — Kameshni Pillay SC ultimately asked him whether he accepted the approach of the Constitutional Court. 

He said the answer was a complex one because “you can’t simply come into a court and overturn a long history of development because … you think your theory is better”.

Respect for precedent was important, he said, but there was a balance that needed to be achieved because it was possible to overturn a previous judgment, as the Constitutional Court has done, when the court realised it was going down a path that did not achieve justice.

The whole day was dedicated to Bilchitz’s interview, with the other three candidates being rescheduled for Tuesday morning.

At the end of the interviews the JSC must give President Cyril Ramaphosa a list of four names from which he would select his choice for the apex court. If Bilchitz does not secure enough votes, there would not be enough names to put forward to the president, and a post that has been vacant since October would remain vacant until the next round.