THE CONSTITUTIONAL COURT OF SOUTH AFRICA...THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT62/11 In...

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THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT62/11 In the application of: CENTRE FOR APPLIED LEGAL STUDIES First Applicant COUNCIL FOR THE ADVANCEMENT OF THE SA CONSTITUTION Second Applicant and THE PRESIDENT OF THE RSA First Respondent THE MINISTER OF JUSTICE Second Respondent CHIEF JUSTICE SANDILE NGCOBO Third Respondent SUBMISSIONS OF CALS AND CASAC

Transcript of THE CONSTITUTIONAL COURT OF SOUTH AFRICA...THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT62/11 In...

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THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT62/11

In the application of:

CENTRE FOR APPLIED LEGAL STUDIES First Applicant

COUNCIL FOR THE ADVANCEMENT OF THE SA CONSTITUTION Second Applicant

and

THE PRESIDENT OF THE RSA First Respondent

THE MINISTER OF JUSTICE Second Respondent

CHIEF JUSTICE SANDILE NGCOBO Third Respondent

SUBMISSIONS OF CALS AND CASAC

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CONTENTS

INTRODUCTION ................................................................................................................................................. 3

The facts ........................................................................................................................................................ 3

Direct access .................................................................................................................................................. 4

The substantive issues ................................................................................................................................... 5

SECTION 176(1) OF THE CONSTITUTION ........................................................................................................... 7

The relevant provisions ................................................................................................................................. 7

Delegation not permitted.............................................................................................................................. 8

Only an extension of general application permitted .................................................................................. 11

The legislative history of section 8(a) .......................................................................................................... 13

Conclusion ................................................................................................................................................... 14

THE CONSTITUTIONAL REQUIREMENT OF JUDICIAL INDEPENDENCE ............................................................ 15

SECTION 174(3) OF THE CONSTITUTION ......................................................................................................... 21

REMEDY ........................................................................................................................................................... 24

PRAYER ............................................................................................................................................................ 26

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INTRODUCTION

The facts

1. The Chief Justice’s term of office is due to expire on 15 August 2011.

2. On 11 April 2011 the President requested the Chief Justice to continue to perform

active service as Chief Justice in terms of s 8(a) of the Judges’ Remuneration and

Conditions of Employment Act 88 of 1989.1

3. Following speculation in the media that government may extend the Chief Justice’s

term of office, CALS wrote to the President and the Minister of Justice on 17 May 2011

expressing the view that s 8 of the Judges’ Remuneration Act was invalid and said

that, if the Chief Justice’s term of office were to be extended, CALS would challenge

the validity of s 8 because it raised an important question of principle.2

4. The Chief Justice informed the President on 2 June 2011 that he had decided to

accede to the President’s request.3

5. The President formally decided on 3 June 2011 to extend the Chief Justice’s term of

office for a period of five years.4 The President informed the leaders of opposition

1 Letter 11 April 2011 ZC p 194

2 Letter 17 May 2011 FA6 p 93 at p 94 paras 5 to 8

3 Letter 2 June 2011 ZD p 196

4 Minute 3 June 2011 ZF p 200

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political parties of his decision and publicly announced it.5 The State Attorney

informed CALS of the President’s decision.6

Direct access

6. On 15 June 2011 CALS and CASAC launched an application in the High Court

challenging the validity of s 8(a) and the President’s decision made in terms of it.7 On

21 June 2011 Freedom Under Law and the Justice Alliance of South Africa launched

an application for direct access to this court for substantially the same relief. CALS

and CASAC consequently launched a conditional application to this court on 23 June

2011, for direct access to this court if it should grant direct access to FUL and JASA.8

7. CALS and CASAC abide the decision of this court on whether to grant direct access to

FUL and JASA. If it should however grant direct access to them, then CALS and

CASAC also seek direct access to this court. The President accepts that, if direct

access is granted to FUL and JASA, it would be in the interests of justice for CALS and

CASAC also to be granted direct access.9 The Minister however denies that CALS

and CASAC have made out a case for direct access even if it should be granted to

FUL and JASA.10 We submit with respect that the Minister’s approach is

unsustainable. If FUL and JASA qualify for direct access, then so would CALS and

5 Statement 3 June 2011 FA9 p 98

6 Letter 3 June 2011 FA10 p 100

7 High Court Notice of Motion 15 June 2011 p 18

8 Conditional application 23 June 2011 p 1

9 President’s Answer p 128 paras 15 to 17

10

Minister’s Answer p 137 para 13, p 139 para 20.4, p 140 paras 23.2 to 24.4

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CASAC on the same grounds. This conclusion is in line with this court’s approach to

direct access in comparable situations.11

The substantive issues

8. We shall submit that s 8(a) of the Judges’ Remuneration Act and the President’s

decision taken in terms of it, are unconstitutional and invalid on three grounds. The

first is that they violate s 176(1) of the Constitution. The second is that they violate the

constitutional requirement of judicial independence. The third is that they violate

s 174(3) of the Constitution.

9. Our submissions on remedy are as follows:

9.1. If this court makes an order of invalidity after 15 August 2011, then it should

do so with prospective effect only.

9.2. The Minister asks for any order of invalidity to be suspended but does not

advance any justification for it. We shall address the issue if and when he

does so.

9.3. NADEL supports the Minister’s request for suspension. It argues in effect that

the incumbent Chief Justice is better able to perform the functions of his office

11

Minister of Home Affairs v Fourie (Doctors for Life International and Others, Amici Curiae) 2006 (1) SA 524 (CC) paras 34 to 44; Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae) 2005 (1) SA 580 (CC) paras 29 to 34; Mkontwana v Nelson Mandela Metropolitan Municipality and Another 2005 (1) SA 530 (CC) paras 2 to 16; AParty v Minister for Home Affairs; Moloko v Minister for Home Affairs 2009 (3) SA 649 (CC) paras 14 to 19 and 27 to 34

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than anybody else who might be appointed in his stead. We are unable to

make such a comparison and it would be invidious for us to do so.

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SECTION 176(1) OF THE CONSTITUTION

The relevant provisions

10. Section 176(1) of the Constitution provides as follows:

“A Constitutional Court judge holds office for a non-renewable term of 12

years, or until he or she attains the age of 70, whichever occurs first, except

when an Act of Parliament extends the term of office of a Constitutional Court

judge.”

11. Sections 3(1), 4(1) and 4(2) of the Judges’ Remuneration Act regulate the terms of

office of Constitutional Court judges, including the Chief Justice, as follows:

11.1. A judge is normally discharged from active service when he or she reaches

the age of 70 or completes a 12-year term of office, whichever comes first.

11.2. If at that stage, the judge has not completed 15 years of active service (as a

judge of the Constitutional Court or the High Court), he or she continues in

active service until completion of 15 years of active service or the age of 75,

whichever comes first.

12. Section 8(a) provides for the further extension of the Chief Justice’s term of office as

follows:

“A Chief Justice who becomes eligible for discharge from active service in

terms of section 3(1)(a) or 4(1) or (2), may, at the request of the President,

from the date on which he or she becomes so eligible for discharge from

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active service, continue to perform active service as Chief Justice of South

Africa, for a period determined by the President, which shall not extend

beyond the date on which such Chief Justice attains the age of 75 years.”

(our emphasis)

13. Section 8(a) thus grants the President the power to extend the tenure of a Chief

Justice of his choice for any period determined by him provided only that it does not

extend beyond the Chief Justice’s 75th year.

Delegation not permitted

14. Section 176(1) vests the power to extend the Chief Justice’s term of office in

parliament. Section 8(a) purports to delegate that power to the President.12 We

submit for the following reasons that this delegation is impermissible.

15. This court has frequently recognised that the Constitution sometimes permits

parliament to delegate its legislative powers and sometimes not.13 Whether it is in any

given case entitled to do so, is a matter of constitutional interpretation based in the first

12

The Minister seems to deny that s 8(a) confers any discretion on the President (Minister’s High Court Answer p 220 para 50.1 and p 227 para 60.1). His denial is however incompatible with the language of the section and is contradicted by the President’s own understanding:

“I was advised that there were two options open to me. I had to consider both and decide on which I consider appropriate in the circumstances. ... I could either determine to appoint a new Chief Justice utilising the process and my functions under s 174(3) of the Constitution or I could seek to exercise my functions under s 8(a) of the Judges’ Act and request the Chief Justice to continue service for a period specified by me.... I decided on the latter initiative especially as a result of the Chief Justice’s involvement in projects other than decision making in litigation.” (President’s High Court Answer p 167 para 72)

13

Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC) para 51; In re Constitutionality of the Mpumalanga Petitions Bill, 2000 2002 (1) SA 447 (CC) para 19; Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another 2000 (1) SA 661 (CC) para 123 – 124; AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) para 49, 93 and 122 - 123

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place on the language and context of the enabling constitutional provision. This court

put it as follows in the Executive Council case:

“The enquiry is whether the Constitution authorises the delegation of the

power in question. Whether there is constitutional authority to delegate is

therefore a matter of constitutional interpretation. The language used in the

Constitution and the context in which the provisions being construed

occur are important considerations in that process.”14 (our emphasis)

16. The language of s 176(1) makes it clear that the power vested in parliament to extend

the Chief Justice’s term of office, may not be delegated. That is because it prescribes

the legislative instrument by which the extension must be made. It may only be done

by an act of parliament. It means that only parliament may exercise this power and

cannot delegate it to anybody else.

17. This implication is highlighted by the contrast between the language of s 176(1) and

that of the provision immediately following it in s 176(2). It provides that other judges

hold office until they are discharged from active service “in terms of an Act of

Parliament”. This language allows room for delegation to the executive by an act of

parliament.15 The language of s 176(1) on the other hand, leaves no room for the

exercise of the power of extension by anybody other than parliament itself.

14

Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another 2000 (1) SA 661 (CC) para 124

15

Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC) paras 120 – 124

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18. This understanding is also borne out by this court’s judgment in the Executive Council

case.16 It concerned s 159(1) of the Constitution which provides that the term of a

municipal council must be determined “by national legislation”. Section 239 of the

Constitution defines “national legislation” to include subordinate legislation made in

terms of an act of parliament. This court however held that parliament could not

delegate its power in terms of s 159(1) to the Minister. It based its conclusion on the

language and context of s 159(1). It said in relation to the language of s 159(1) that,

“The Constitution uses a range of expressions when it confers legislative

power upon the national Legislature in chap 7. Sometimes it states that

„national legislation must‟; at other times it states that something will be dealt

with „as determined by national legislation‟; and at other times it uses the

formulation „national legislation may‟. Where one of the first two formulations

is used, it seems to me to be a strong indication that the legislative power

may not be delegated by the Legislature, although this will of course also

depend upon context.”17

It said of the context of s 159(1) that,

“The term of office of an elected legislative body such as a municipal council

is a crucial aspect of the functioning of that council. In the case of the National

Assembly, s 49(1) of the Constitution determines the term and, in the case of

the provincial legislatures, s 108(1) of the Constitution determines the

terms.”18

It concluded as follows:

16

Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another 2000 (1) SA 661 (CC)

17

Para 125 18

Para 126

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“Given its importance in the democratic political process, and given the

language of s 159(1), the conclusion that s 159(1) does not permit this matter

to be delegated by Parliament, but requires the term of office to be

determined by Parliament itself, is unavoidable. In addition to the importance

of this matter, I also take cognizance of the fact that it is one which Parliament

could easily have determineditself for it is not a matter which requires the

different circumstances of each municipal council to be taken into

consideration. All that is required is to fix a term which will apply to all

councils. In my view, this is not a matter which the Constitution permits to be

delegated. The delegation was, therefore, impermissible and s 24(1) must be

held to be inconsistent with s 159(1) of the Constitution.”19

19. In the present case, the language of s 176(1) does not even allow the latitude

permissible under s 159(1) considered in the Executive Council case. It can also not

be suggested that the determination of the terms of office of Constitutional Court

judges is any less important than that of municipal councils. In the light of this court’s

conclusion in the Executive Council case, it is thus patent that the power to extend the

term of office of the Chief Justice in terms of s 176(1) cannot be delegated as s 8(a) of

the Judges’ Remuneration Act purports to do.

Only an extension of general application permitted

20. We submit for the following reasons that s 176(1) only permits an extension of the term

of office of a Chief Justice which is of general application. It does not permit the

extension of the term of office of a particular Chief Justice without extending the terms

19

Para 126

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of office of all Chief Justices in the same circumstances. Section 8(a) of the Judges’

Remuneration Act accordingly also violates s 176(1) insofar as it permits the President

to extend the terms of office of any individual Chief Justice of his choice.

21. Section 176(1) only permits a Chief Justice’s term of office to be extended by an act of

parliament. It follows for the following reasons that it may only be done in relation to all

or some Chief Justices as a generic class and not in relation to one or more

individually selected Chief Justices:

21.1. It is a principle of the rule of law that the legislature may ordinarily only make

laws of general application.20

21.2. Any law which extends the term of office of a selected Chief Justice without

also extending the terms of office of other Chief Justices in the same

circumstances, would be arbitrary in its differentiation between them. Such a

law would violate the prohibition of arbitrary differentiation in s 9(1) of the

Constitution.21

21.3. Such a law would also violate the principle of judicial independence because it

would permit parliament to selectively extend the terms of office of only those

Chief Justices whose decisions it finds acceptable. It would constitute, and

would in any event create a reasonable perception, of undue interference with

the principle of judicial independence.

20

Beinart The Rule of Law 1962 Acta Juridica 99 at 101 and 106 to 107 and footnote 58 in particular 21

Harksen v Lane 1998 (1) SA 300 (CC) paras 44, 45 and 54(a)

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22. Section 8(a) of the Judges’ Remuneration Act permits the President to extend the term

of office of any Chief Justices of his choice. It thus also violates the requirement of

s 176(1) that any extension be of general application.

The legislative history of section 8(a)

23. The respondents seek to make something of the fact that the current version of

s 176(1) and the Judges’ Remuneration Act were enacted at the same time.22 We

submit with respect however that this argument is unfounded:

23.1. Whether parliament thought that section 8(a) was consistent with section

176(1) of the Constitution is plainly irrelevant to the question of whether it is in

fact consistent with it.

23.2. In any event, section 8(a) of the Judges’ Remuneration Act is, in substance,

simply a re-enactment of section 7A of the Judges' Remuneration and

Conditions of Employment Act 88 of 1989.23 Section 7A of that Act came into

force on 7 July 1993 – before even the 1993 Constitution was adopted. It

entitled the President to request the Chief Justice to continue to perform

service as Chief Justice after he had been discharged from active service.

22

President’s High Court Answer p 159 para 46; Minister’s High Court Answer p 210 paras 24 to 31 23

Section 7A(1) provided: “(1) A Chief Justice who has been discharged from active service, except a Chief Justice

who has been discharged from active service in terms of section 3 (1) (b), (c) or (d), may, at the request of the President, from the date on which he has been discharged from active service, perform service as Chief Justice of South Africa for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years. (2) A Chief Justice who performs service in terms of subsection (1) shall monthly be paid such remuneration as the President may determine.”

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23.3. This hardly suggests that s 8(a) of the Judges’ Remuneration Act was

carefully crafted to comply with the newly amended section 176(1) of the

Constitution. On the contrary, it was in effect simply imported from the

previous constitutional era.

Conclusion

24. We submit for these reasons that s 8(a) violates s 176(1).

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THE CONSTITUTIONAL REQUIREMENT OF JUDICIAL INDEPENDENCE

25. Judicial independence is a cornerstone of the rule of law entrenched in s 1(c) of the

Constitution.24 It is implicit in the rights to a fair hearing in terms of ss 34 and 35(3) of

the Constitution.25 It is specifically entrenched in s 165(2) of the Constitution which

provides that “The courts are independent and subject only to the Constitution and the

law, which they must apply impartially and without fear, favour or prejudice”.

26. This court has articulated several principles that inform the requirement of judicial

independence:

26.1. At its core, judicial independence requires judicial officers to act independently

and impartially in dealing with cases that come before them, and at an

institutional level it requires structures to protect courts and judicial officers

against external interference.26

26.2. Judicial independence is not subject to limitation.27

26.3. Judicial independence and impartiality are critical to individual and public

confidence in the administration of justice.28

24

Van Rooyen v The State 2002 (5) SA 246 (CC) para 17 25

Van Rooyen para 35 26

De Lange para 70; Van Rooyen para 29 27

Van Rooyen para 35. 28

Van Rooyen para 32; S v Basson 2007 (3) SA 582 (CC) para 27

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26.4. A key aspect of judicial independence is security of tenure.29

27. This court held in Van Rooyen that the requirement of judicial independence requires

both actual independence and an appearance or perception of independence.30 It

recently again emphasized the importance of the public perception of independence in

Glenister:

“Whether a reasonably informed and reasonable member of the public will

have confidence in an entity‟s autonomy-protecting features is important to

determining whether it has the requisite degree of independence. Hence, if

Parliament fails to create an institution that appears from the reasonable

standpoint of the public to be independent, it has failed to meet one of the

objective benchmarks for independence. This is because public confidence

that an institution is independent is a component of, or is constitutive of, its

independence.”31

28. This court recognised in De Lange32 and reiterated in Van Rooyen33 that the

Constitution itself differentiates between the different courts and that the most rigorous

and elaborate conditions of judicial independence need not be afforded to all courts.

The Constitution differentiates in the first place between the judges of the superior

courts and all other judicial officers. Within the ranks of the judges of the superior

29

De Lange para 70; Van Rooyen para 29 30

Van Rooyen para 32 31

Glenister v President of the RSA 2011 (3) SA 347 (CC) para 207 32

De Lange v Smuts 1998 (3) SA 785 (CC) para 72 33

Van Rooyen v The State 2002 (5) SA 246 (CC) paras 20 to 27

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courts, it also differentiates between the judges of the High Court, the Supreme Court

of Appeal and the Constitutional Court respectively. This much is apparent from the

following provisions of the Constitution relating to the protection of judicial

independence:

Concourt SCA High Court Other

1 Principle 165 165 165 165

2 Appointment 174(3) and (4) 174(3) and (6) 174(6) 174(7)

3 Acting appointment

175(1) 175(2) 175(2)

4 Term of office 176(1) 176(2) 176(2)

5 Remuneration 176(3) 176(3) 176(3)

6 Removal 177 177 177 174(7)

29. The Constitutional Court is at the top of this hierarchy. The independence of its judges

are thus afforded the most rigorous and elaborate protection. The Chief Justice is at

the pinnacle of the entire judiciary and the protection of his or her independence is

thus paramount.

30. The non-renewability of the terms of office of Constitutional Court judges in terms of

s 176(1) of the Constitution, is an important part of the protection of their judicial

independence. The Constitution itself affords the same protection to the Public

Protector in terms of s 183 and the Auditor-General in terms of s 189 of the

Constitution. Section 12(1) of the National Prosecuting Authority Act 32 of 1998 also

employs this mechanism for the protection of the independence of the National

Director of Public Prosecutions.

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31. This court recently articulated the rationale for this protection in Glenister when it drew

attention to the dangers inherent in a renewable term of office:

“A renewable term of office, in contradistinction to a non-renewable term,

heightens the risk that the office-holder may be vulnerable to political and

other pressures.”34

32. We accept that a non-renewable term of office is not a necessary ingredient of the

judicial independence of all courts.35 But it is an important mechanism which the

Constitution has chosen to employ in the protection of the judicial independence of all

Constitutional Court judges including the Chief Justice.

33. The only exception to the requirement of a non-renewable term of office permitted by

s 176(1), is one made by an act of parliament. Section 8(a) accordingly violates the

principle of judicial independence insofar as it permits the President to extend the term

of office of any Chief Justice of his choice.

34. This conclusion is fortified by the recent decision of the Court Martial Appeal Court of

Canada in Le Blanc.36 The court held that legislation which provided for renewable

terms of office for military judges was incompatible with the right of an accused to be

tried by an independent and impartial tribunal:

34

Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) para 223. 35

This court for instance held in Van Rooyen v The State 2002 (5) SA 246 (CC) paras 150 to 155 that it was not a necessary ingredient of the protection of the judicial independence of magistrates.

36

Le Blanc v The Queen 2011 CMAC 2 (2 June 2011)

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“It is important for the accused person that the judge not be, and not appear

to be, beholden to these five members of the chain of command, that his or

her security of tenure is not subject to reappointment and that his or her

institutional independence provides the accused with the assurance of a fair

and equitable trial”.37

“The accused person must also be able to be confident that the sentence he

or she received was imposed by a military judge who enjoys the constitutional

protection required to ensure the legitimacy of the sentence. I do not believe

that five-year renewable terms for military judges provide the necessary

constitutional protection, especially if you consider the added fact that it was

considered necessary to give such protection to civilian judges exercising the

same functions.”38 (our emphasis)

The court held that provisions of this kind “almost assuredly, raise a reasonable

apprehension in a reasonable and right-minded person that this independence may

be undermined by external interference, in this case, that of the Minister.”39

35. This approach is also supported by the views of the former Lord Chief Justice of

England and Wales, Lord Bingham. In dealing with the principle of judicial

independence, he has stated.

“[The principle of judicial independence] calls for decision-makers to be

independent of local government, vested interests of any kind, public and

parliamentary opinion, the media, political parties and pressure groups, and

37

Para 52. 38

Para 54. 39

Para 62.

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their own colleagues, particularly those senior to them. In short, they must be

independent of anybody or anything that might lead them to decide issues

coming before them on anything other than the legal and factual merits of the

case as, in the exercise of their own judgment, they consider them to be.

There would be an obvious threat to that independence if a decision-

maker’s salary or tenure of office were dependent on the acceptability of

his judgments to those affected by them. A similar threat would arise if (as

has happened in other countries but scarcely ever, in recent years, in the UK)

a decision-maker‟s prospects of promotion could be blighted because his

judgments were unwelcome to the powers that be.”40 (our emphasis)

40

Bingham, T., The Rule of Law, (2010) at p92.

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SECTION 174(3) OF THE CONSTITUTION

36. Section 174(3) of the Constitution permits the President to appoint the Chief Justice

but only after he has consulted the Judicial Service Commission and the leaders of

parties represented in the National Assembly:

“The President as head of the national executive, after consulting the Judicial

Service Commission and the leader of parties represented in the National

Assembly, appoints the Chief Justice and Deputy Chief Justice and, after

consulting the Judicial Service Commission appoints the President and

Deputy President of the Supreme Court of Appeal.”

37. This court recognised the importance of the role of the Judicial Service Commission as

a check on the power of the executive in making judicial appointments including that of

the Chief Justice:

“The JSC contains significant representation from the Judiciary, the legal

professions and political parties of the opposition. It participates in the

appointment of the Chief Justice, the President of the Constitutional Court

and the Constitutional Court Judges, and it selects the Judges of all other

courts. As an institution it provides a broadly based selection panel for

appointments to the Judiciary and provides a check and balance to the

power of the Executive to make such appointments.”41 (our emphasis)

38. The fact that the President is not bound by the recommendations of the JSC does not

undermine the importance of the requirement that he consult with it before appointing

41

Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) para 124

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the Chief Justice. It nonetheless constitutes an important check on the exercise of

executive power.

39. This is made clear by the decision of this court in Van Rooyen. It dealt with the

provisions of the Magistrates Act which empowered the Minister of Justice to appoint

magistrates “after consultation” with the Magistrates Commission. This court held that,

even though the Minister was not bound by the recommendations of the Magistrates

Commission, the role of the Commission was an important check on the power of the

Minister:

“[T]he appointment of a Magistrates Commission, presided over by a Judge,

and drawn from diverse sections of the legal community to advise the

Executive in relation to the appointment of magistrates is a check on the

exercise of executive power, and not a flaw in the appointment process.”42

40. Section 8(a) of the Judges’ Remuneration Act allows the President to make ad hoc

extensions of the term of office of any Chief Justices of his choice for any period of his

choosing. He may do so without any prior consultation of the kind prescribed by

s 174(3).

41. We submit with respect that this implication of s 8(a) violates the requirement of

s 174(3) which only permits the President to appoint a Chief Justice after due

consultation. The respondents say that consultation is unnecessary for the extension

of the term of office of the Chief Justice because it would have occurred at the time of

his initial appointment. But their argument misses the point. The purpose of the

requirement of prior consultation is not merely to determine the candidate’s fitness for

42

Van Rooyen para 109.

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office but also to determine whether he or she is the best and most appropriate

candidate for the office of Chief Justice. It is necessarily a comparative evaluation

which takes account, not only of the qualities of the incumbent, but also of those who

might take his place.

42. By dispensing with the need for any consultation, s 8(a) thus circumvents the important

check on the President’s power of appointment in terms of s 174(3). The result is that

there are no checks and balances in the exercise of the President’s discretion in

violation of the constitutional scheme and s 174(3) in particular.

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REMEDY

43. It follows from the invalidity of s 8(a) of the Judges’ Remuneration Act that this court

must in terms of s 172(1)(a) declare both the section and the President’s decision

made in terms of it to be invalid.

44. If this court were to make an order of invalidity after the Chief Justice’s term of office

expires on 15 August 2011, it would for obvious reasons be undesirable to let the order

operate with retrospective effect. We accordingly submit that it should only be made

with prospective effect.

45. The Minister asks for any order of invalidity to be suspended but does not advance any

justification for it. But it is a well-established principle that a party who seeks

suspension of an order of invalidity must provide the court with justification for it:

“[A]s a general rule, a government organ or other party wishing to keep an

unconstitutional provision alive should at least indicate the following: what the

negative consequences for justice and good government of an immediately

operational declaration of invalidity would be; why other existing measures

would not be an adequate alternative stop-gap; what legislation on the

subject, if any, is in the pipeline; and how much time would reasonably be

required to adopt corrective legislation. Parties interested in opposing such an

order should be given an opportunity to motivate their opposition.”43

43

Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC) para 37. See also Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) para 33

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46. The respondents have not advanced any justification for suspension, have publicly

rejected proposals for remedial legislation, have not made any commitment or

proposal to the contrary, have not expressed any willingness to cure the defect in

s 8(a) and have not given any indication of the time-frame within which it will be done.

We are accordingly unable to address their request for suspension. We will do so

more fully if and when they put flesh to the bones of their request.

47. NADEL supports the Minister’s request for suspension. It argues in effect that the

incumbent Chief Justice is better able to perform the functions of his office than

anybody who might be appointed in his stead. We are with respect unable to make

such a comparison and it would be invidious for us to do so.

48. The position of CALS and CASAC on remedy is accordingly that they are not in

principle opposed to the possibility of suspension. The respondents have however not

advanced any justification for it. If and when they do, we shall address the issue more

fully.

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PRAYER

49. CALS and CASAC ask for an order in terms of prayers 1 to 5 of their notice of motion

subject to the following:

49.1. If the orders of invalidity are made after 15 August 2011, they should only be

made with prospective effect.

49.2. The first and second respondents should be ordered jointly and severally to

pay the applicants’ costs including the costs of three counsel.

Wim Trengove SC Vincent Maleka SC

Gilbert Marcus SC Geoff Budlender SC

Steven Budlender Tembeka Ngcukaitobi

Nomzamo Mji

Counsel for CALS Counsel for CASAC

Chambers Johannesburg and Cape Town 8 July 2011

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TABLE OF AUTHORITIES

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC)

AParty v Minister for Home Affairs; Moloko v Minister for Home Affairs 2009 (3) SA 649 (CC)

Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae) 2005 (1) SA 580 (CC)

Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC)

De Lange v Smuts 1998 (3) SA 785 (CC)

Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC)

Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC)

Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another 2000 (1) SA 661 (CC)

Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC)

Harksen v Lane 1998 (1) SA 300 (CC)

In re Constitutionality of the Mpumalanga Petitions Bill, 2000 2002 (1) SA 447 (CC)

Le Blanc v The Queen 2011 CMAC 2 (2 June 2011)

Minister of Home Affairs v Fourie (Doctors for Life International and Others, Amici Curiae) 2006 (1) SA 524 (CC)

Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA SA 1127 (CC)

Mkontwana v Nelson Mandela Metropolitan Municipality and Another 2005 (1) SA 530 (CC)

S v Basson 2007 (3) SA 582 (CC)

Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC)

Beinart The Rule of Law 1962 Acta Juridica 99

Bingham, T., The Rule of Law, (2010) at p92