ANC Chief Whip gets it wrong (again)

It is always embarrassing when somebody in high office makes a fool of him or herself. It is a bit like being stuck in traffic and spotting the person in the car behind you picking his nose: one wants to look away but one also cannot help staring, appalled at having caught a person in such an act.

Today the Office of the Chief Whip of the ANC issued a statement that is so clueless and embarrassing that one wonders whether the person holding that office has ever read the Constitution or the Judges’ Remuneration and Conditions of Employment Act. The statement reads in part:

It is, in our view, questionable whether the decision by the parties responsible to mount a Concourt challenge was taken in good faith. No similar legal challenges were taken when the same process was followed previously regarding the extension of the terms of office for former Justices Arthur Chaskalson and Pius Langa.

This is of course, utter nonsense. Section 8(a) of the Judges’ Remuneration and Conditions of Employment Act, on which President Jacob Zuma purported to rely when he tried to extend the term of office of Chief Justice Sandile Ngcobo, has never been relied upon to “extend” the term of office of any Chief Justice in South Africa. The statement from the office of the Chief Whip seems to confuse section 4 of the Act with section 8(a) of the Act.

In terms of section 8(a) the term of office of the Chief Justice can be extended by the President when the term served by that Chief Justice on the Constitutional Court comes to and end. It thus delegates the power, given to Parliament by section 176 of the Constitution to extend the term of office of Constitutional Court judges, to the President, but only to the extent that the President can extend the term of office of a Chief Justice (not other judges of that Court).

It is true that section 4 of the same Act states that judges who serve on the Constitutional Court will normally serve for either 12 years or 15 years on that court. A judge will serve for 12 years if he or she had served on a lower court for at least three years before appointment to the Constitutional Court. This was the case with Justice Ngcobo who served  for several years as a High Court judge before appointment to the Constitutional Court.

Section 4 states that a judge who has never served on any other court or has served less than 3 years on another court, will be allowed to serve as a judge for 15 years altogether. Thus Justice Chaskalson and Langa could serve for longer than 12 years as they had not served as judges in any other court before appointment to the Constitutional Court.

The differences between section 4 and 8 are clear: Section 4 deals with judges generally – not just with the Chief Justice. Section 4 does not delegate the power to extend the term of office of any judge to the President but regulates – in an automatic way – the terms of office of Constitutional Court judges who will serve 15 years if they had not served as judges before, regardless of whether anyone in Parliament or the Executive wanted them too. Section 4 does not single out the Chief Justice but deals with judges generally. The distinction that is made is between Constitutional Court judges who had served as judges before and those who had not. Thus, Justice Yacoob, who is currently in his thirteenth year on the Constitutional Court, will be able to serve another two years as he was appointed without having served as a judge in another court.

The statement also displays a surprising lack of knowledge of the legislative history of these sections as well as the academic criticism levelled at the amendment of section 176 and the provisions of the Act now being challenged. In 2002, Prof Francois du Bois published an article in the South African Law Journal entitled  “Tenure on the Constitutional Court” (South African Law Journal, 2002. pp 1-17) which critisise the amendment of section 176 of the Constitution as well as the provisions of the Judges’ Remuneration and Conditions of Employment Act and refers to a submission made to Parliament at the time when it was debating this issue. The article also notes critical comments made by then Chief Justice Chaskalson about moves to extend his term.

The statement by the ANC’s Chief Whip’s office therefore gets it horribly and embarrassingly wrong. But it displays the kind of ignorance and defensiveness which have bedevilled the attempts by the Minister of Justice and the President to find a constitutionally valid way to extend the term of office of the current Chief Justice. A quick look at the Law Journals and to the files of Parliamentary submissions and debates would have helped the various gentlemen involved in this cock-up to come to grips with rather basic principles of Constitutional Law.

Of course section 176 should never have been amended. As a matter of principle it is not appropriate for the term of office of Constitutional Court judges to be regulated by ordinary legislation. But once a constitutional amendment is validly passed it cannot be tested against other sections of the Constitution (although its scope can be narrowly interpreted to make it fit into the larger architecture of the Constitution), so the only question now is whether section 8(a) of the Judges’ Remuneration and Conditions of Employment Act complies with section 176 of the Constitution or not. The constitutionality of section 4 of that Act is not in issue.

So, as I have said before, all that was needed to extend the term of office of the incumbent Chief Justice was to amend section 4 of the Judges’ Remuneration and Conditions of Employment Act to extend the term of office of all Constitutional Court judges to 15 years so that the distinction between judges who had served before appointment to the Constitutional Court and judges who had not, would be removed. If they had followed this route, the extension would have been constitutionally valid – as it was constitutionally valid for Chaskalson, Langa and all other judges of the Constitutional Court who had not served on another court before appointment to the Constitutional Court (O’Reagan, Mokgoro, Sachs come to mind) to serve up to 15 years on that court.

The fact that they automatically did so in terms of a law of general application as envisaged by section 176 of the Constitution and NOT because they were or had to be asked to do so by the President in terms of section 8(a), makes all the difference. Maybe the next time the honourable Chief Whip will remember this obvious fact before metaphorically picking his nose in public.

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