“The legal provisions governing the tenure of Constitutional Court judges have remained unchanged for decades.”

-Judith February
In April 2026, President Ramaphosa announced the appointment of Justices Dambuza-Mayosi and Savage to the Constitutional Court.

The announcement followed a seemingly interminable wait (of six months) for the President to make his decision, after the Judicial Service Commission (JSC) had interviewed candidates and provided him with a shortlist to select from in October 2025.

The delay raised significant concerns about the impact of the delay in making the appointments on the functioning of the Constitutional Court.

Despite this unprecedented delay, the appointments were welcomed. They carried tremendous significance as both of the new justices are women, meaning that for the first time the Court had a majority of women among its permanent judges. This was a groundbreaking development – only three other apex courts globally have a majority of women on their benches.

On a functional level, the appointments were important because they meant that, for the first time since 2016, the court had a full complement of 11 permanent judges.

The failure to appoint permanent judges had been a longstanding cause for concern regarding the Constitutional Court.

For one thing, it raised questions about whether the way the JSC was conducting public interviews was deterring potential candidates from putting themselves forward. (In 2021, the JSC’s conduct of interviews for the Constitutional Court was so problematic that, faced with the threat of litigation, it agreed to re-run them).

The importance of the court having a full complement of judges is particularly significant in light of increasing evidence to suggest that the Court was struggling to deal with its workload.

As Freedom Under Law’s recently released report has highlighted, the court is under increasing pressure as a dramatic increase in the number of appeals, growing case backlogs, and procedural inefficiencies lead to concerning delays in delivering judgments.

Whilst having a full complement of permanent judges will not fix these problems on its own, it will surely help the court to have a full complement of judges who are able to work on developing sustainable solutions over time, without having to return to other courts once temporary stints come to an end, as is the case with acting judges.

So with all this being said, observers of the court could breathe a sigh of relief that the Court at last had a full complement of judges and could go about addressing its challenges in dealing with its workload.

As it turns out, the Court’s full complement of permanent judges lasted less than two months, until Justice Zukisa Tshiqi retired at the end of May. There are also rumours in legal circles that another Constitutional Court judge may retire before the end of the year.

Generally, Constitutional Court judges serve a fixed term of 12 years, or until the reach the age of 70.

For those with limited time as judges prior to their appointment, legislation allows them to continue to perform active service as a Constitutional Court judge until they have served for 15 years or they reach the age of 75. (This ensures that the salary these judges receive after they are discharged from active service is not negatively affected).

But it is also possible for judges to request to be discharged from active service if they reach the age of 65 and have performed 15 years of active service – as seems to have been the case with Justice Tshiqi.

None of this should be unforeseen or surprising to the leadership of the judiciary. The legal provisions governing the tenure of Constitutional Court judges have remained unchanged for decades.

There should be no particular magic in determining when the tenure of a justice of the court is coming to an end. A judge seeking discharge from active service must inform the Minister of Justice, in writing, that they no longer wish to perform active service, and they are then discharged from active service by the President.

This process must inevitably take time and it is hard to imagine that judicial leadership would be blindsided by such a development.

All of which makes it surprising and concerning that, when the JSC announced the vacancies which would be filled at its October 2026 sitting, no vacancy for the Constitutional Court was included. The announcement was made at the beginning of May – less than a month before Justice Tshiqi’s retirement.

Considering everything we have said about the importance of filling vacancies on the Constitutional Court, in the context of the serious operational challenges the court is facing, it is hard to understand why the vacancy was not advertised at the first available opportunity.

This means that the court will likely now be without it’s full complement of permanent judges again, until at least April 2027, when the JSC would next be scheduled to sit.

It is important that the court’s leadership – in particular the Chief Justice – engages in proactive succession planning to ensure that such long gaps in the court being at “full strength” in terms of its complement permanent judges do not continue to be a regular feature.

The court has enough on its plate without adding the challenges of being under judicial capacity to the mix.
It must be hoped that quick action will be taken to ensure that the vacancy occasioned by Justice Tshiqi’s retirement, as well as subsequent vacancies, are filled promptly and without unnecessary delay.

END