Jewish jurists appointed acting judges of Constitutional Court

Esteemed lawyers David Bilchitz and Matthew Chaskalson have been appointed acting judges in the Constitutional Court in 2024.

Bilchitz is professor of fundamental rights and constitutional law at the University of Johannesburg, and the director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC). He has been appointed to serve as an acting judge in February and March of 2024. Chaskalson, the son of the late former Chief Justice Arthur Chaskalson, has been appointed alongside Bilchitz.

“I’m deeply honoured to have been appointed, and to be able to serve our country in that capacity. I hope to live up to the significant responsibility and faith placed in me,” Bilchitz told the SA Jewish Report.

The appointments cover for vacancies or for permanent judges who are on leave.

President Cyril Ramaphosa appoints acting judges on the recommendation of the justice minister, in consultation with the chief justice and leaders of parties in the National Assembly.

The process begins with the Judicial Service Commission (JSC) preparing a list of nominees, with three names more than the number of appointments to be made, which is submitted to the president, who then makes appointments from the list and must advise the JSC, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.

Should there be a shortfall if the president isn’t happy with the proposed candidates, the JSC must supplement the list with further nominees for the president to choose from.

It was through this process that Bilchitz and Chaskalson were appointed.

Bilchitz will be acting as a judge of the Constitutional Court alongside 10 other judges.

Since the Constitutional Court is the highest court in South Africa, Bilchitz and his colleagues will decide constitutional matters and cases where there is an arguable point of law of general public importance.

The appointments have been criticised by the Pan African Bar Association of South Africa (PABASA), which congratulated the three appointed judges – Bilchitz, Chaskalson, and Advocate Alan Christopher Dodson, but said, “The appointment of three white males all at once sends a chilling and unfortunate message about gender and race issues in our judiciary and our country.”

The appointments suggests that the president, the minister, and the chief justice couldn’t find “even one able female and black senior practitioner to form part of the three significant acting appointments at the Constitutional Court”, PABASA said.

“The legal profession comprises some of the best black legal practitioners, including the most African senior counsel that argued in the certification [of the Constitution] case of 1996, the first African woman to be awarded the status of senior counsel in South Africa,” PABASA said.

“These otherwise excellent appointments may be tainted by the unfortunate implication about those who aren’t white. In fact, this act may have the effect of reinforcing sad historical stereotypes about women and Africans,” PABASA said. “We hope this was a genuine act or oversight or [due to the] unavailability of black and female professionals and academics rather than a cynical act from a deep-rooted inferiority complex.”