In the recent hearings of the Judicial Services Commission in October 2021, there appears to have been a strong assumption that only sitting judges with considerable prior judicial experience should be appointed to the Constitutional Court. That assumption should be challenged — there are good reasons why the highest court of our land should include legal experts who may lack prior judicial experience.
It is necessary, however, for practitioners to transition from arguing before judges to being the adjudicators of disputes. Higher courts are thus to be made up of those practitioners who have developed significant judicial experience. Judges in lower courts are also more likely to respect those who have similar backgrounds and have accumulated significant judicial experience.
In light of this role, there are strong reasons to include academics in the apex court. The approach and background of academics and practitioners differ. While some of our best legal minds are in legal practice, the demands of litigation and legal process require that the engagement with a particular subject area necessarily be limited to what is required to argue one’s case. Academic life encourages a depth of engagement with a subject that emerges from years of reading and reflection.
To do so, there is no need to have served in lower courts whose task and function are different — the role of judges in such cases is much more about applying existing law to the facts and they are bound by the decisions of the higher courts. Procedures and technicalities are of greater importance at this level whereas, in the Constitutional Court, the focus should be more on the substantive content of legal rules.
Tina_Hokwana Academic who always told us ConCourt has final say and no appeal after then boom Adv Mpofu appeal ConCourt decision at lower court.... Those guys are useless and they should not be brought anywhere near courts they must be kept in classrooms were they lie to students
Elements this academic claims w'd be brought by academics at concourt, are routinely manifest in lower courts, yet doesn't attempt to make a case for academics to be simply appointed judges at that lower level. His then simply becomes that it must be done 'cos its done elsewhere.
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