President Jacob Zuma did not nominate Justice Bess Nkabinde to fill the position of Deputy Chief Justice because her term ends in December.
"She has already served 18 years as a judge and it is mandatory that she retires on the completion of the 12-year term at the Constitutional Court," the presidency said in a statement.
Zuma was responding to EFF leader Julius Malema, who wrote an open letter accusing him of overlooking a qualified black woman judge to fill the position. It was left vacant when Dikgang Moseneke retired last year. Zuma announced on Friday that he nominated Justice Raymond Zondo to take over the position.
According to the law, Constitutional Court judges hold office for a non-renewable term of 12 years.
Malema said Nkabinde had sufficient experience and was already acting in the position. While the EFF was not opposed to Zondo, it said a black women should be given the chance to advance the struggle against patriarchy in the judicial system and country.
Other justices had served in the Constitutional Court for longer than Zondo, like Sisi Khampepe who was also a black woman and a seasoned judge, Malema pointed out.
"When you, Mr Zuma, spoke about women leadership of our country and that South Africa is ready to be led by a woman, we did not realise that this was limited to your ex-wife, Nkosazana Dlamini-Zuma," Malema said. He was referring to speculation that Dlamini-Zuma could run for ANC president at the party's elective conference in December.
A government official News 24 spoke to was surprised that Malema was not aware that Nkabinde's term was ending, despite him being on the Judicial Service Commission. Nkabinde was appointed to the Constitutional Court in 2006.
If Zuma had nominated Nkabinde, it would have meant that he had to start the process again when her term ended in December, the official said.
Zuma said he held Nkabinde in high regard and appreciated the fact that the EFF considered her worthy of nomination.