I have today written to the Head of the Judicial Services Commission (JSC), Chief Justice Mogoeng Mogoeng, requesting reasons why the vacant seat at the Constitutional Court has not yet been aertised.
The absence of any aertisements for the vacant seats on the Constitutional Court Bench is of increasing concern considering that President Jacob Zuma is empowered to appoint acting jurists in the interim.
While this doesn’t necessarily rise to a breach of the separation of powers, it certainly blurs the lines between the Executive and the Judiciary because the President and the Executive appoints the Judiciary.
The current vacancy in the Constitutional Court has been created by the retirement of Justice Thembile Skweyiya.
Even though there are several qualified and independent jurists from which to pick, the JSC has not called for nominations to fill the vacancy in the highest and most important court of the land.
It is not clear why the JSC has failed to do so given that the retirement of justice Skweyiya was known well in aance.
Judges are appointed on a permanent basis primarily to ensure the independence of the courts from the other two arms of government. In the instance of acting appointments, such guarantee of independence is naturally encroached upon as many of the acting justices aspire to be appointed to that particular court and do not have the security of tenure as in the instance of permanent justices.
It is therefore critical for the JSC to ensure that acting appointments are kept to an absolute minimum and reverted to only in unforeseen instances, such as judges becoming ill or exercising their right to be absent on long leave.
There are already a high number of acting appointments on the Constitutional Court bench. Currently three Justices are on long leave, which has led to the acting appointment of Justice Zukisa Tshiqi and Justice Leona Theron by the President. In addition, Justice Mahube Betty Molemela was appointed an acting judge to the Constitutional Court as was Justice Achmat Jappie.
It is therefore important that the JSC ensures that calls for nominations are made as soon as possible for vacancies arising in between sessions of this body. This will ensure the timeous securing of suitable candidates at the next round of interviews for appointment.
As primary custodian of our judiciary, Chief Justice Mogoeng must do all in his power to ensure the independence of the ConCourt. He must be diligent in urging the JSC calls for nominations to fill these vacancies and thereby ensuring qualified and independent jurists are appointed to the ConCourt.
Shadow Deputy Minister of Mineral Resources
Source : Democratic Alliance