[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.
15 June 2011
CASAC AND CALS LAUNCH COURT APPLICATION TO CHALLENGE EXTENSION OF TERM OF CHIEF JUSTICE
CASAC together with the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand, Johannesburg have today launched an application challenging the constitutionality, validity and legality of President Zuma’s decision to request Chief Justice Sandile Ngcobo to continue to perform active service as Chief Justice for a further period of five years. We will seek a hearing in the North Gauteng High Court on 19 July 2011.
In the Founding Affidavit, the applicants state that they “do not wish in any way to impugn the integrity or ability of the Chief Justice…. (and that) a constitutional principle of fundamental importance is at stake.” They also raise concerns about the damage that will be done to the administration of justice if uncertainty over the legality of the extension of the Chief Justice’s term is not resolved quickly.
The current term of office of Chief Justice Ngcobo will expire on 15 August 2011 after a 12 year stint as a Constitutional Court judge. However President Zuma announced on 3 June 2011 that he had decided to extend the term of the Chief Justice for a period of five years, from 16 August 2011 to 15 August 2016. The extension was done in terms of section 8(a) of the Judges Remuneration and Conditions of Employment Act, 2001. In this statement from the Presidency it was noted that the President had merely informed the political parties as well as the Judicial Services Committee of his decision; it did not claim that he had consulted them.
However, section 176(1) of the Constitution provides that:
“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 where an Act of Parliament extends the term of office of a Constitutional Court judge.”
CASAC and CALS believe that the Constitution requires that two things be done before the term of Constitutional Court judges can be extended:
• First, the Constitution requires that Parliament decides on the extensions – not the President. In this case Parliament has been prevented from playing its rightful role.
• Second, the Constitution does not permit an extension being granted for a specific Constitutional Court judge or Chief Justice. Rather it allows only a law which extends the terms of Constitutional Court judges or categories of Constitutional Court judges generally.
It is our contention that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act is unconstitutional in that it seeks to delegate a power to the President to decide whether to extend the term of a Chief Justice.
Sipho Pityana, Chairperson of CASAC says that “This infringes upon the principle of the separation of powers, the rule of law and the independence of the judiciary that are the very cornerstones of our constitutional architecture.”
If a Chief Justice is unilaterally appointed by the head of the executive there will inevitably be a suspicion or perception that he or she is beholden to the person that has the power to appoint. This breach of judicial independence is heightened by the fact that, while the Constitution imposes a system of checks and balances for the initial appointment of a Chief Justice, no such checks and balances are put in place when section 8(a) of the Judges’ Remuneration Act is used.
The Constitution provides for fixed term appointments of Constitutional Court judges. That is an important component of their judicial independence. Indeed the Constitutional Court itself has stated that a renewable term of office increases the risk that the office-holder may be vulnerable to political and other pressures.
The legal challenge by CASAC and CALS highlights the uncertainty of the legality of the Chief Justice’s extension. Unless it is resolved expeditiously, this uncertainty has the potential to undermine the administration of justice in South Africa. This is a state of being that we as a nation can ill afford. We need instead to be strengthening constitutional institutions so that we may consolidate and deepen our democratic order.
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