Academic David Bilchitz says his ‘different expertise’ would be valuable for ConCourt post

Fulltime law professor David Bilchitz said his global knowledge and experience will bring a difference to the Constitutional Court should he be appointed to the vacant justice position.

A human rights and constitutional law expert, Bilchitz is vying for the justice post in the apex court that has been vacant since 2021.

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The academic is the first non-judge in decades to be interviewed for the job.

Bilchitz says he has ‘different expertise’ than judges

Bilchitz told the Judicial Service Commission (JSC) on Monday that academic expertise is not the same as others’ and should be distinguishable.

“It is a different form of expertise. I could have chosen the route of being an attorney, advocate and be appointed as a judge potentially.

“That would have have been a different route of a legal career. An academic career brings with it certain advantages and disadvantages, and we have incredible judges and advocates who bring a wealth of expertise to the court.

“But they do not have the same expertise as myself. The key is to distinguish the differences between the expertise,” he said.

The law professor’s first stint in court was in the Constitutional Court when he served as a law clerk to the late Justice Pius Langa in 2000.

He was admitted as an attorney in 2007, but never practised law and instead became an acclaimed academic.

To date, he has written books, published 47 journal articles, contributed to 27 book chapters and wrote other wide-ranging papers on human rights.

Bilchitz has for the past two months acted in the Constitutional Court.

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On Monday, commissioners grilled him on his lack of judicial experience.

“Its quite clear you wrote extensively on the subject. What would you say to someone pointing out that you didn’t practise and that that counts against you?” asked chairperson and Chief Justice Raymond Zondo.

Bilchitz said section 174 of the constitution, which lays out requirements for judicial appointments, allows for others with different experience to join the apex court.

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His experience on global law issues also brings a necessary perspective, he added.

“I would like to suggest to you some aspects that is characteristic of academic thinking. One, it is the breadth of perspective, and exposure to different systems and views and constitutional cultures.

“In fact, ours is an outward looking constitution. We are expressly required when interpreting the Bill of Rights to take into account the international law and consider foreign case law.

“I did say when referring to my book that I went all the way in thinking about what are the fundamental underpinnings of human rights, how does socio-economic rights relate to civil and political rights and what implications does that have for legal doctrine.

“So that ability to delve in and have a deeper understanding of underlying questions, which involve years or research and reflection can aid the court and bring another form of experience,” said Bilchitz.

‘Academics complement judges’

Gauteng Judge President Dunstan Mlambo asked him why he opted for the highest court in the land rather than lower courts such as the Supreme Court of Appeal (SCA).

The professor replied that academic expertise would not be suitable at lower courts.

“Academics bring expertise and breath of knowledge from multiple jurisdictions and a depth of engagements with topics, and those are the kind needed particularly at the courts that decide authoritatively such as the Constitutional Court.

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“Perhaps academics are well placed to engage with the deeper principles of law, they can go to the highest court without lacking anything and that complements the judges who’ve been in the system.

“For me, it’s not about one being better than the other, but it’s a complementary setting of different skill sets that advances the judgments and substantive values of courts.

“I’ve read a comment somewhere that very few constitutional cases come before the lower courts, that expertise would not be of much value as it is to the Constitutional Court.

“Academics have focus on core issues,” he said.

‘No depth at apex court’

But Commissioner Karrisha Pillay said the “so-called point of distinction” is illusory given the experienced and highly qualified judges and advocates vying for the same post.

“You seem to be putting forward a distinguishing factor which clearly is not the case taking into consideration the other candidates who are also academically experienced,” she said.

Bilchitz said he disagreed.

“And I am not seeking to cast any aspersion on other candidates, but there is a difference between people who have spent their life researching and working on issues around fundamental rights and people who, without bashing their expertise, take cases and try marshal the evidence for their clients to give the best possible case.

“I have noticed in the apex court, having acted there, that there is a lack of depth at times in the submissions brought forward.

“The issues remain at a certain level of doctrinal engagements, and we have brilliant people who are also candidates, but their experience differs from those who research and work on comparable law and its philosophical dimensions.”

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Asked how he has helped transform the judiciary, especially in helping black academics become full professors, Biltchitz said his work at UJ’s SA Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) speaks volumes.

“I direct and nurture black and female academics at SAIFAC. I was mentored to understand how to be an academic and I try to do that as well.”

He said he also sits on the Constitutional Trust that affords poor students opportunities to study law overseas.

“There are aspects we are yet to achieve, I think there isn’t enough in South Africa to help people afford to study.

“I agree that we need to do a whole lot more in transformation along gender lines.”

Bilchitz’s interview was supposed to take at least an hour but it went into the late afternoon.

The JSC will on Tuesday interview judges Tati Makgoka and Ashton Schippers, both of the SCA, and Advocate Alan Dodson.

All three are also vying for the Constitutional Court post.

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