Justice Alliance of South Africa v President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J, Van der Westhuizen J and Yacoob J
• Judgment Date: 29 July 2011
• Citation: 2011 (5) SA 388 (CC)
• Docket Number: CCT 53/11, CCT 54/11 and CCT 62/11
• Hearing Date: 18 July 2011
• Counsel: A Katz SC (with D Simonsz) for the applicant. KJ Kemp SC (with LK Olsen) for the first respondent. MTK Moerane SC (with M Sello) for the second respondent. JJ Gauntlett SC (with M du Plessis and A Coutsoudis) for the applicant. KJ Kemp SC (with LK Olsen) for the first respondent. MTK Moerane SC (with M Sello) for the third respondent. W Trengove SC and G Marcus SC (with S Budlender and N Mji) for the applicants. V Maleka SC and G Budlender SC (with T Ngcukaitobi) for the applicants. KJ Kemp SC (with LK Olsen) for the first respondent. MTK Moerane SC (with M Sello) for the second respondent. G Bizos SC (with A Hassim) for the first amicus curiae. N Matlala for the second amicus curiae.
• Court: Constitutional Court

The court: E

Introduction

[1] The three applications for direct access before us arise from a decision by the President of the Republic of South Africa to extend the term of office of the Chief Justice of South Africa for five years. They were all brought during the court recess and heard together. All the F applicants challenge the constitutionality of the law that authorises the process by which the term of office of the Chief Justice was extended and, if the law is found to be valid, put in issue the constitutional validity of the conduct of the President in the process of extending that term of office. G

Background

[2] Before its amendment in 2001, [1] s 176 of the Constitution provided that a Constitutional Court judge is appointed for a non-renewable term of 12 years but must retire at the age of 70. The 2001 amendment did H not alter the term of appointment of a Constitutional Court judge but gave Parliament the power to extend the term of office of a Constitutional Court judge. Section 176(1) now provides:

'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, I except where an Act of Parliament extends the term of office of a Constitutional Court judge.'

The Court

A [3] Section 4 of the Judges' Remuneration and Conditions of Employment Act [2] (Act) provides that a Constitutional Court judge, whose 12-year term of office expires or who reaches the age of 70 years before completing 15 years' active service, must continue in office until the completion of 15 years' active service or until that judge attains the age B of 75 years, whichever is the sooner. [3]

[4] Section 8(a) of the Act [4] provides:

'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 C discharge from active service, continue to perform active service as Chief Justice of South Africa for a period determined by the President,

The Court

which shall not extend beyond the date on which such Chief Justice A attains the age of 75 years.'

[5] In effect, s 8(a) permits the further extension of the term of office of the Chief Justice exclusively. It allows a Chief Justice, whose 12-year term in this court is to expire and who will have completed 15 years' active service, to remain the Chief Justice of South Africa at the request B of and for a period determined by the President.

[6] The 12-year term of office of the incumbent Chief Justice expires at midnight on 14 August 2011. [5] He will also have completed more than 15 years' active judicial service by this date. [6] It follows that the Chief Justice cannot continue in office beyond midnight on 14 August C 2011 unless his term of office is validly extended before that date.

[7] On 11 April 2011 the President requested the Chief Justice in writing to remain in office for an additional period of five years:

'Dear Chief Justice Ngcobo D

REQUEST TO CONTINUE TO PERFORM ACTIVE SERVICE AS CHIEF JUSTICE OF SOUTH AFRICA

I am advised by the Minister of Justice and Constitutional Development, Mr JT Radebe, MP, that on 15 August 2011 you will complete 15 years of active service as defined in section 1 of the Judges' E Remuneration and Conditions of Employment Act, 2001 (Act No 47 of 2001) (the Act), and consequently that you will, in terms of section 176(1) of the Constitution of the Republic of South Africa, 1996, read with section 3(1)(a) of the Act, be eligible to be discharged from active service with effect from the said date.

I am also aware that Cabinet has recently approved the Constitution F Seventeenth Amendment Bill and the Superior Courts Bill which seek to consolidate the outstanding aspects relating to the transformation of the judicial system and the judiciary in particular, and to enhance judicial accountability and access to justice in general. I am further advised that Parliament will soon be seized with these Bills and other Bills which impact directly on the judiciary, which have been outstanding for a long time. I take cognizance of the critical role you have, of G providing leadership to the Judicial Branch of Government whose contribution will be vital during the stages of processing these Bills and their ultimate enactment and implementation.

Section 8(a) of the Act provides that, ''A Chief Justice who becomes eligible for discharge from active service in terms of section 3(1)(a) or 4(1) or H (2), may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active

The Court

A 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''.

Having regard to the above, I, in terms of section 8(a) of the Act, would like to request you to continue to perform active service as Chief Justice B of South Africa from the 15th August 2011 until 15 August 2016.

I will appreciate your response to my request, as well as your views on the period I have suggested.

Yours sincerely

JACOB GEDLEYIHLEKISA ZUMA

C PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA'

[8] This is the first time that s 8(a) has been used by the President.

[9] On 2 June 2011 the Chief Justice responded to the President's request in writing:

D 'Dear Mr President

REQUEST FOR THE CHIEF JUSTICE TO CONTINUE TO PERFORM ACTIVE SERVICE AS CHIEF JUSTICE OF SOUTH AFRICA

I refer to the letter from the President of 11 April 2011 requesting me to continue to perform active service as Chief Justice of South Africa.

E I have carefully considered the reasons for the request and the period suggested by the President. I have decided to accede to the request and continue to lead the Judicial Branch of Government during this critical time of the transformation of the Judiciary and Judicial system in South Africa.

A number of judicial transformative initiatives have recently been F undertaken by the Minister of Justice and Constitutional Development in collaboration with the Chief Justice and the Judiciary. Some of the most important programmes which require leadership over the next five years are the following:

(i)

The process of implementing Proclamation No 44 of 2010 by the G President establishing the Office of the Chief Justice as a national department located within the Public Service would only be completed over the next year;

(ii)

The development of a model and policy in respect of the creation of an independent Office of the Chief Justice in line with the independence of the Judiciary is only expected to be finalised over H the next two years;

(iii)

The establishment of the Constitutional Court as the apex Court of South Africa and the constitutional recognition of the Chief Justice as the Head of the Judiciary and Head of the Constitutional Court proposed in the Constitution Seventeenth Amendment Bill I and the Superior Courts Bill, must still be piloted through Parliament and the subsequent implementation would have to occur over the next five years;

(iv)

The Access to Justice Conference scheduled for July 2011, is expected to yield programmes to improve access to justice throughout the country, including the deep rural areas of South J Africa, and their implementation would require the Judiciary to

The Court

work together with the Minister of Justice and Constitutional A Development over the next five years;

(v)

Consultation and negotiation with the Minister of Justice and Constitutional Development on the draft Judicial Code of Conduct and the Regulations for the Register of Registrable Interests for Judges, are currently underway; and B

(vi)

The changes to the legislative framework for dealing with complaints on judicial conduct are only in the first stages of implementation and it is expected that substantial development to improve judicial accountability will take place over the next five years.

I am therefore in agreement with the President that a five year term is C appropriate and adequate to place the independence of the judiciary, judicial accountability and access to justice on a sound footing and continuity in leadership is vital at this stage of these transformative changes.

Warmest regards, D

I am, sincerely,

S SANDILE NGCOBO

CHIEF JUSTICE OF THE REPUBLIC OF SOUTH AFRICA'

[10] On 3 June 2011 the President effected the extension of the term of E office of the Chief Justice. [7] Later that day, the President communicated this decision to the Judicial Service Commission (JSC) and to leaders of the political parties represented in the National Assembly before he announced his decision in an address to Parliament.

Applications before this court

[11] The first application for direct access was brought on 20 June F 2011 by the Justice Alliance of South Africa (JASA), a voluntary association with legal capacity. The second application was launched on the same day by Freedom Under Law NPC (FUL), a non-profit company. [8] The third application for direct access was brought before this court three days later, [9] jointly by the Centre for Applied Legal G Studies (CALS) and the Council for the Advancement of the South African Constitution (CASAC). CALS is institutionally part of the University of the Witwatersrand; CASAC is an association with legal capacity. The application by CALS and CASAC was in some sense precipitated by the first two applications. CALS and CASAC had, before the launch of the applications in this court by JASA and FUL, instituted H proceedings in the North Gauteng High Court, Pretoria, for a declaration of constitutional invalidity of s 8(a) of...