The ‘curse’ of the JSC and questions of whether commissioners will behave this time around

The JSC interviews will be held from 3 to 12 October. Astonishingly, no candidates will be interviewed for the available Constitutional Court position.

This position was left vacant after the April interviews, whether rightly or not, as the JSC only nominated four of the five candidates, leaving President Cyril Ramaphosa able to fill only one of the two vacant positions.

Section 174(4) of the Constitution requires the JSC to nominate “three names more than the number of appointments to be made”. The JSC has relied on this section to justify why it can’t hold interviews in October for the vacant Constitutional Court position. According to the JSC, it received four nominations, but one nomination was not eligible for shortlisting, so they do not have the requisite number of candidates to proceed. This is within their right.

However, the question that must be asked is why so few nominations were received. Is it because we do not have capable and suitable persons to sit on the Constitutional Court bench? Or, and this is much more likely, is it because potential candidates are weary of accepting the nomination and opening themselves up to the interview process?

Few people will have forgotten the drama that ensued in previous interview rounds. Only last year, the JSC had to conduct interviews afresh after a court challenge by Casac.

We have come to expect more than a fair share of commotion and some raised voices from the commissioners. Here we remember Judge David Unterhalter and the accusation that his position on the SA Jewish Board of Deputies made him partial to Zionism. Or Judge Dhaya Pillay and her exchange with National Assembly representative Julius Malema.

Few will forget the Chief Justice interviews, especially those questions (or allegations) directed at candidates that had not been raised with them before the interviews. Like the allegations of sexual misconduct or secret meetings in a hotel room with a president.

What has become apparent is that being interviewed for a Constitutional Court position is gruelling. This is not to say it should not be challenging. After all, we want the very best candidates to sit on our highest court.

But, at what cost? The cost of the candidate’s dignity? Or the cost that the very candidates that we need on the bench will not subject themselves to such a trial?

We know that the conduct of commissioners can impact potential candidates. Judge Pillay withdrew her candidacy when the JSC repeated the interview process.

Aside from undignified interviews, there may be other reasons why there are so few nominations for the JSC to shortlist. The Constitution only requires that four members on the Constitutional Court bench be judges when they are appointed. However, the JSC’s misunderstanding of this provision is apparent from previous interviews.