Once these appointments have been made, the president must still fill a further two vacancies and appoint a chief justice before the Constitutional Court will have its full complement of 11 members.
The interviews were a rerun of those conducted in April, after the first round was set aside by an order of the high court. This followed an application by the Council for the Advancement of the South African Constitution , which described the April interviews as “a sham” and unlawful.
The two candidates who lost out were Gauteng high court judge David Unterhalter and senior counsel Alan Dodson. Unterhalter’s April interview was one of those that had been the focus of many of Casac’s complaints. Another was the interview of KwaZulu-Natal court judge Dhaya Pillay - who, the JSC said, had decided not to avail herself even though she was invited to return.
Dodson, a former judge of the Land Claims Court, also defended his application to the ConCourt despite currently not being a sitting judge. He said the Constitution specifically envisaged that judges on the highest court could be appointed from elsewhere and not just the bench. He said the commission could not close the door to him where the Constitution opened it.
Zondo’s opening questions to all the candidates were law-focused, asking them about the circumstances in which direct access to the Constitutional Court could be granted and when direct appeals would be allowed.
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