Most people who request access to information do not have the resources to approach a court to challenge this culture of secrecy which is deeply entrenched in our society (in both public and private institutions). When an individual or institution therefore approaches a court to challenge the denial of access to important information held by the state or a private body, the court should be careful not to bend over backwards to assist state officials in denying access to information, information which is the lifeblood of any democracy.

Unfortunately today a majority of judges of the Constitutional Court handed down a judgment in the case of President of the RSA and Others v Mail & Guardian Media Ltd, in which they came to the assistance of the Presidency who had utterly failed to make out a case for why a report prepared by two judges sent to Zimbabwe by then President Thabo Mbeki to look into that country’s troubled election should not be made public.

This was a close run affair with 5 judges (including an acting judge who might still one day be appointed to the highest court) overturning the High Court and Supreme Court of Appeal judgment, and 4 judges supporting a strong dissent. The majority judgment, authored by former Chief Justice Sandile Ngcobo (and concurred in by Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J), makes all the right noises about the dangers of state secrecy by emphasising the importance of the right of access to information, stating that the importance of this right in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid.

It is impossible to hold accountable a government that operates in secrecy. The right of access to information is also crucial to the realisation of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information. For without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life is undermined.

The majority also correctly points out that PAIA places an evidentiary burden on the party denying access to information to demonstrate that its denial of the information is justified. The Presidency had argued that the denial was justified, first, because the report would reveal information supplied in confidence by or on behalf of another state or an international organisation. This explanation merely recounted the wording of section 41(1)(b)(i). Secondly, the Presidency argued that stated that the record contains an opinion, advice, report or recommendation obtained or prepared for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law. This likewise recounted the wording of section 44(1)(a).

The Presidency failed to produced any plausible evidence by those directly involved in the matter, namely the President (at the time, this was Thabo Mbeki), or the two judges (Justices Moseneke and Khampepe, who both recused themselves from hearing the case), all of which could have confirmed the bold (but unsubstantiated) assertions made by the Presidency about why they were justified in denying access to the report. As an afterthought, so it seems, the Presidency argued that it could not provide a more persuasive justification for its refusal, as section 25(3)(b) and section 77(5)(b) of PAIA provide that a person who refuses access must exclude from the reasons stated “any reference to the content of the record”.

In order to give the Presidency another bite at the cherry to justify that which it had failed to justify before the High Court, the Supreme Court of Appeal and the Constitutional Court, the majority relied on section 80 of PAIA which allows a court to call for additional evidence in the form of the document to which access was denied to have a secret “judicial peek” at that document itself. Section 80 allows the court to conduct a secret review of the document to determine whether the justification for the denial of access was valid or not.

The majority warned that courts should exercise their discretion to call for additional evidence in the form of the contested record only where there is “the potential for injustice as a result of the unique constraints placed upon the parties in access to information disputes”. This injustice may arise, said the court, “because either the requester or the holder of information is prevented by factors beyond its control from presenting the evidence necessary to make its case”.

Because the officials in the Presidency who made submission to the court were not directly involved in the commissioning or production of the report, the majority found that they were required to study the report itself and come to a conclusion about whether it should be made public. The state was therefore “hamstrung” from presenting further evidence in support of its claim to the exemptions. The majority therefore found that the High Court and the SCA should have demanded to have a “judicial peek” at the document to decide whether the refusal was justified in terms of the provisions of PAIA relied upon. The majority therefore referred the matter back to the High Court to do just that. This means the process will start afresh – if the Mail & Guardian has sufficient funds to fight the whole battle anew.

As I read the majority judgment, it assumed — without any credible evidence being presented by the Presidency to that effect — that the Presidency was unable to make a proper case for secrecy because its officials could not quote directly from the report. This did not wash with the minority.

The strongly worded minority judgment, authored by Justice Edwin Cameron (Jafta J, Nkabinde J and Van der Westhuizen J concurring), provides cogent arguments for why the Presidency had to hand over the report immediately. The minority argued that the Presidency had failed to justify its refusal of the record under PAIA, and further failed to provide a plausible basis for a plea that the statute made it impossible for it to provide adequate reasons for its refusal.

The Presidency’s information officer had made no reference in his reasons to the provisions of the statute that prohibit a decision-maker from making any reference to the content of the record when giving reasons for a refusal. Moreover, the pivotal submission by Frank Chikane contained no more than “bald assertions” — which did not constitute evidence at all. Chikane did not state why he claimed to have personal knowledge of the issue. Justice Cameron then proceeded to argue as follows:

As the Supreme Court of Appeal pointed out, one can gain personal knowledge of an event in three very different ways: by experiencing it directly; by receiving a report that it happened (which is hearsay); or by deducing from other signs that it took place. Mr Chikane does not tell us in which of these ways he acquired personal knowledge. This leaves a court unable to perform its most elementary function, which is to assess the quality, strength and reliability of his knowledge in determining whether the fact to which he deposes is true. The mere assertion that he has personal knowledge gives no help in that duty. It follows that his assertion is without value as evidence of the fact in issue. …

The Court rightly noted that the Presidency‘s case amounts to “little more than rote recitation of the relevant sections and bald assertions that the report falls within their terms”. The witnesses offered not reasons, but perfunctory conclusions. This, the Court said, provided a stark contrast with the culture of accountability and transparency that our constitutional era promised. Indeed, the Supreme Court of Appeal likened the approach in the affidavits of the Presidency‘s witnesses to that under apartheid, where government officials exercising wide powers were able simply to assert that they had fulfilled the requirements of the statute, without offering any evidential basis for this.

The minority further pointed out that it was inexplicable that neither the President at the time, or any of the judges involved provided evidence that would support the denial of access to the document.

Neither former President Motlanthe nor President Zuma could cast light on the judges‘ mission. President Mbeki could, but there was no affidavit from him. So the question is — why did President Mbeki not testify? Was he asked or not asked? If asked, did he refuse? Or if not asked, why?

Perhaps even more telling was the absence of evidence from the two judges. They, like former President Mbeki, are living and seemingly available. Why did they not testify? Were they asked? If not, why? A simple affidavit from any of them may have put a quick end to the issues.

The Presidency‘s hands were not tied. It could have obtained direct evidence from any one of the three people most intimately involved in the mission. It failed to do so. More even, it failed to explain why.

The minority also cautions against the use of section 80 of PAIA that would allow the court to have a secret “judicial peek” at the document. It should only be as a last resort that judges should demand to have a “judicial peek” at the document to which access is being denied, said the minority. Moreover this section “should not be used to help government make its case when it has failed to discharge the burden the statute rightly places on it”.

There are good reasons for a court to avoid reliance on section 80 to have a secret peek at the document being denied to come to a secret conclusion based on a secret process. Although it might be necessary to do so, the risks inherent in resorting to secret judicial examination are so grave that it should be avoided if at all possible. Quoting from the Supreme Court of Appeal judgment, Cameron pointed out the dangers of the majority’s approach:

Courts earn the trust of the public by conducting their business openly and with reasons for their decisions. I think a court should be hesitant to become a party to secrecy with its potential to dissipate that accumulated store of trust. There will no doubt be cases where a court might properly make use of those powers but they are no substitute for the public body laying a proper basis for its refusal.

Nor should the public ever fear that courts may assist in suppressing information to which the Constitution says they are entitled. To give secret judicial examination of disputed records a central place in deciding claims to exemption, instead of enforcing the burden government rightly bears to justify withholding information, is in my view a grave error.

The minority would therefore have ordered the immediate release of the document as the Presidency had utterly failed to justify it being kept secret.

The two judgments handed down today present starkly different attitudes towards secrecy and the role of the executive in keeping secrets. The majority bent over backwards to find ways of not ordering the immediate release of the report, despite the fact that the executive had utterly failed to make a plausible case for keeping the document secret. The minority looked at the evidence provided by the Presidency, determined that it had not provided any cogent reasons for keeping the report secret and would have ordered its release.

The first judgment can therefore be read as displaying a rather touching (or perhaps naive) trust in the inherent honesty and probity of the executive and its commitment to an open and democratic society based on openness, transparency and accountability. The minority looked at the facts and applied the law as it relates to the facts presented to the court. It took the law at face value and interpreted and applied it in a manner that would inhibit state officials from denying access to important documents and then justifying it by making bald and unsubstantiated assertions of their right to do so.

There are reasons for this reluctance on the part of Provinces to challenge the powers of the national legislature and executive. Provincial governments do not have the power to raise much revenue and is also required to co-operate with the national sphere of government. Besides, provincial legislatures do not have any residual powers to pass legislation. In other words, unlike the national Parliament, which enjoys plenary legislative power within the bounds of the Constitution, the legislative authority of provinces is circumscribed by the Constitution.

Schedule 4 of the Constitution lists those functional areas on which both the national Parliament and the provincial legislatures can pass legislation. These include important areas such as housing, health care, education, policing and education. Schedule 5 lists functional areas with regard to which provincial legislatures have exclusive legislative competence, but these exclusive powers relate to subjects of little importance such as beaches and amusement facilities; billboards and the display of advertisements in public places; cemeteries, funeral parlours and crematoria; fencing and fences; local sport facilities; noise pollution; street trading; street lighting; and traffic and parking.

Provinces have no power to legislate on a matter falling outside Schedules 4 and 5 unless it is a matter “that is expressly assigned to the province by national legislation” or is a “matter for which a provision of the Constitution envisages the enactment of provincial legislation”.

This does not mean that provincial governments have no power to affect the lives of ordinary citizens. A good provincial government can make a huge difference to the delivery of basic services and can also wreck the best-laid plans of a national minister if it does not do its job properly. This is because provincial executives are tasked with implementing not only provincial legislation in the province, but also with implementing all national legislation within the functional areas listed in Schedule 4 or 5 (except where the Constitution or an Act of Parliament provides otherwise).

That is why a national minister of housing, health or education has limited powers to ensure that the services provided in a province is of a high standard. Where the MEC for education and her officials in a province fail to ensure that textbooks are delivered on time or that ARV medication is freely available at hospitals and clinics, the national minister can usually do little more than discuss this problem with that MEC during a MINMEC meeting (a meeting of the minister and relevant MEC’s).

Our system of co-operative government means that the national government and provincial governments have a duty to co-operate with one another “in mutual trust and good faith”, but as anyone knows who has tried to delegate work to an incompetent or lazy person, these requirements work best when the MECs are diligent and their departments are run efficiently. Unless the national government decides to intervene officially in a province in terms of section 100 of the Constitution (in cases where a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution), the national minister has limited power to interfere in the day to day running of the affairs of a provincial department.

But despite the fact that these general principles are now quite settled, it is far from clear exactly where the powers of the national Parliament and Executive end and where the powers of provincial Parliaments and Executives begin. We would need more test cases to be brought to the Constitutional Court to clarify the boundaries of the powers that may constitutionally be exercised by provincial Parliaments and provincial Executive Committees.

That is why the Constitutional Court judgment handed down today in the case of Premier: Limpopo Province v Speaker of the Limpopo Provincial Government and Others is of some interest — even though the case dealt with a seemingly rather technical question. The question presented in the case was whether the Provincial Legislature of Limpopo had the authority to enact legislation dealing with its own financial management. It arose out of the Financial Management of the Limpopo Provincial Legislature Bill, 2009 (Bill), which was passed by the Provincial Legislature, but which the Premier – very properly, it must be said — declined to assent to and sign. (Maybe the Premier’s legal adviser could be promoted to assist the State Law Adviser with the more complex constitutional questions with which he seems to have such difficulties.)

The Bill mirrored to a large degree national legislation on how to deal openly and transparently with the finances of the Limpopo legislature by creating an oversight committee; setting out the responsibilities of the accounting officer in relation to the money of the provincial legislature; how to deal with the financial misconduct of its own employees and several other related issues.

Schedule 4 or 5 of the Constitution does not allow the provincial legislature to pass laws dealing with its own financial management. The most important legal question was therefore whether the Bill dealt with a matter “that is expressly assigned to the province by national legislation” or a “matter for which a provision of the Constitution envisages the enactment of provincial legislation”. It is the second question that is of particular interest here.

In a minority judgment, Justice Yacoob (in a judgment concurred in by Justice Cameron) argued that the Constitution did “envisage” that a province could pass legislation like the Bill under discussion. Finding that the word “envisages” means something different from “expressly assigned”, Yacoob argued that section 215(1) of the Constitution envisaged that provincial legislatures had the power to pass legislation dealing with its own financial management.

This section requires provincial budgetary processes to promote transparency, accountability and effective financial management of the economy, debt and the public sector. The section then provides that national legislation must prescribe certain pre-requisites that must be complied with by provincial entities and prescribes what budgets in each sphere of government should contain. This, in effect, implied (although the minority is careful not to use this term) that a provincial legislature has the power to determine its own budgetary processes and that it could determine this process by passing legislation regulating that process.

The majority disagreed. In a judgment authored by Chief Justice Ngcobo, a slightly narrower view was taken on the powers conferred on provincial legislatures by the Constitution. It did so by arguing that where the Constitution does not expressly grant legislative powers to the provincial legislature, it does not “envisages” the enactment of provincial legislation. The majority judgment thus confirmed the view that one cannot assume that provincial legislatures have the power to pass legislation merely because they have the power to regulate their own processes and  can do so administratively.

Our constitutional scheme does not permit legislative powers of the provincial legislatures to be implied. Were it to be otherwise, the constitutional scheme for the allocation of legislative power would be undermined. The careful delineation between the legislative competence of Parliament and that of provincial legislatures would be blurred.  This may very well result in uncertainty about the limits of the legislative powers of the provinces. In the light of the plenary legislative powers of Parliament, it would result in the provinces having concurrent legislative competence with Parliament in respect of many matters. This is not what the drafters of our Constitution had in mind.

If the legislative powers of the provincial legislatures are to be implied beyond those expressly set out in the Constitution, this would, in my view, diminish, through an expansive reading of the Constitution, the residual legislative powers of Parliament. This would be inconsistent with the scheme of the Constitution, by which the provincial legislatures are given specific powers under the Constitution and Parliament is assigned the rest. In my view, the plenary legislative powers granted to Parliament are not to be diminished by implying legislative powers of provincial legislatures not expressly stated in the Constitution. The assignment of powers to the provinces must be expressed in clear and unequivocal language.

Chief Justice Ngcobo argued that the sections relied upon by Justice Yacoob do not envisage the enactment of provincial legislation but, on the contrary, expressly envisage the enactment of national legislation. The national parliament could therefore pass such legislation for provinces, but provinces could not pass such legislation themselves.

In a formal legal sense, I suspect this reading is the more accurate one. It is also more in line to the spirit of the Constitutional Court’s previous forays into this area of the law as it is based on the assumption that provinces only have those powers explicitly provided for by the Constitution and that our Constitution was drafted to secure the upper hand in such matters for the national sphere of government.

On a policy level the (perhaps) slightly more strained interpretation of Justices Yacoob and Cameron is probably preferable to the more logical and coherent interpretation of the majority. If we are going to have a provincial sphere of government that works effectively, a sphere of government where each province established its own character and its government could demonstrate its ability to do better than the national government, our courts should be hesitant to interpret the Constitution too narrowly in a way that favours the powers of the national sphere of government.

At the moment this will make little difference but as the political landscape changes and as more provinces are governed by parties who are not represented in the national government, this could become important. Imagine the SACP or some other party of the left governs three provinces while the ANC retains power at national level. In such a scenario one would probably want the provinces to have the freedom to experiment with different policies that might demonstrate — within the boundaries of what is constitutionally permissible — the benefits of such progressive policies. Whether this will really make any difference — given the fact that budgets are mostly determined at national level — is another question.

However, because the case dealt with a rather technical issue, it does not really help us to understand how the Court will rule in cases where provincial governments push through legislation aimed at further regulating the administration of health, education, policing and housing and where such legislation is in conflict with national legislation on the same topic.

One may argue that it is time for provincial governments to become more adventurous by establishing particular legislative standards and criteria for the delivery of very important services in the fields of education, housing, health and policing as they are co-responsible for these along with the national government. But because provinces have very little independent revenue raising capacity and depend on an allocation from the national budget, this will be rather difficult — especially if a province wished to establish higher standards for the delivery of a particular service and this would have budgetary implications.

The judgment serves as a stunning legal defeat for the Minister of Justice who – in the face of judicial precedent and contrary to the considered opinion of most credible constitutional lawyers – had continued to argue to the bitter end that section 8(a) was constitutionally valid. Incapable of accepting the serious challenge this section posed to the independence of the judiciary, the Minister played politics with the extension in a manner that might well, in another political climate, have led to demands for his resignation.

No wonder then that the incumbent Chief Justice earlier this week withdrew his acceptance of an extension of his term. Both the original section relied upon by the President and the scheme cooked up by the ministry of justice to try and extend the incumbent’s term of office have now been found wanting. It is clear that the Minister needs better legal advice or, perhaps, needs to listen to legal advice provided.

The judgment handed down today is important because it affirms – in ringing terms – and further elaborates on constitutional law principles relating to the independence of the judiciary, the rule of law and the separation of powers.

As I have argued before and as the Court points out, section 8(a) is constitutionally problematic because it confers on the President an executive discretion to decide whether to request a Chief Justice to continue to perform active service and, if he or she agrees, to set the period of the extension. The term of office cannot be extended unless the President decides so and the Chief Justice accedes to the request.

The period of the extension too is in the exclusive discretion of the President and is unfettered in the sense that he is not required to consult. What makes the section even more problematic is that in its purported delegation, Parliament has not sought to furnish any, let alone adequate, guidelines for the exercise of the discretion by the President. The provision thus usurps the legislative power granted only to Parliament by section 176 of the Constitution and therefore constitutes an unlawful delegation of legislative power to the President. Although the Court did not say this, the hallmark of many authoritarian states is the granting of substantive law-making powers to the executive, allowing the President of such a state to rule by decree. Such a situation is not compatible with a constitutional democracy.

In a constitutional democracy, Parliament may not ordinarily delegate its essential legislative functions. Although section 176(1) of the Constitution creates an exception to the requirement that a term of a Constitutional Court judge is fixed, that authority, however, vests in Parliament and nowhere else. The Court noted that section 176(1) does not merely bestow a legislative power, but by doing so also marks out Parliament’s significant role in the separation of powers and protection of judicial independence.  As the Court stated:

Accordingly, section 8(a) violates the principle of judicial independence. This kind of open-ended discretion may raise a reasonable apprehension or perception that the independence of the Chief Justice and by corollary the judiciary may be undermined by external interference of the Executive. The truth may be different, but it matters not. What matters is that the judiciary must be seen to be free from external interference.

The decision points out that what is at stake here is nothing less than the independence of the judiciary, returning to this point time and again. The Court thus states:

It is well established on both foreign and local authority that a non-renewable term of office is a prime feature of independence. Indeed, non-renewability is the bedrock of security of tenure and a dyke against judicial favour in passing judgment. Section 176(1) gives strong warrant to this principle in providing that a Constitutional Court judge holds office for a non-renewable term. Non-renewability fosters public confidence in the institution of the judiciary as a whole, since its members function with neither threat that their terms will not be renewed nor any inducement to seek to secure renewal.

This is the point that the Minister seemed not to have grasped. This lack of appreciation for the independence of the judiciary is also reflected in the nature of the proposed amendments to section 8 tabled hastily before Parliament when it appeared that section 8(a) was going to be declared invalid. The Court, in finding that it would be impermissible to single out the office of the Chief Justice for an extension of his term of office, makes the following important points:

In approaching this question it must be borne in mind that the extension of a term of office, particularly one conferred by the Executive or by Parliament, may be seen as a benefit. The judge or judges upon whom the benefit is conferred may be seen as favoured by it. While it is true, as counsel for the President emphasised, that the possibility of far-fetched perceptions should not dominate the interpretive process,75 it is not unreasonable for the public to assume that extension may operate as a favour that may influence those judges seeking it. The power of extension in section 176(1) must therefore, on general principle, be construed so far as possible to minimise the risk that its conferral could be seen as impairing the precious-won institutional attribute of impartiality and the public confidence that goes with it.

Although the Constitution specifically creates the office of the Chief Justice and that of Deputy Chief Justice this does not allow for an extension of his or her term only. This is so because once appointed, the Chief Justice and Deputy Chief Justice take their place alongside nine other judges in constituting the membership of this Court. The Constitution provides that a matter before the Constitutional Court “must be heard by at least eight judges”.

Their high office and the extra-judicial duties they may be called upon to perform add nothing to the tally.” … Nor does their office count when this Court determines the cases and the matters before it. Their views count and their voices are heard equally with the respect and authority accorded every member of this Court.

Thus, it is plain, said the Court, that section 176(1) of the Constitution does not allow Parliament to single out any individual Constitutional Court judge by name (as originally suggested by the Democratic Alliance when it proposed a solution to the extension of the incumbent Chief Justices’ term of office). It is also plain that no individual may be singled out on the basis of an irrelevant individual characteristic or feature.

It follows that the term “a Constitutional Court judge” in section 176(1) does not permit singling out any one Constitutional Court judge on the basis of his or her individual identity or position within the Court. It also follows that in exercising the power to extend the term of office of a Constitutional Court judge, Parliament may not single out the Chief Justice. Given the ANC’s strange insistence – in the face of obvious facts to the contrary, that the challenge to section 8(a) was politically motivated and that it had been used before to extend the term of office of the Chief Justice, it is important to note that the Court distinguishes (as I did in my previous post) between section 8(a) and section 4 of the Act. It pointed out the the proposed amendment to section 8 differs from section 4 of the Ac as section 4:

does not allow any member of the category of Constitutional Court judge to be singled out, whether on the basis of individual characteristic, idiosyncratic feature or the incumbency of office. Age is an indifferent criterion that may be applied in extending the term of office of a Constitutional Court judge. Age is an attribute that everyone attains. Previous judicial service is another criterion that may be indifferently applied to all the judges of this Court. The Act provides that a Constitutional Court judge whose 12-year term of office expires before he or she has completed 15 years‟ active service as a judge must, subject to attaining the age of 75, serve for 15 years in this Court.

Interestingly the Court also rejected the argument that the order of invalidity of section 8(a) should be suspended for a time to allow Parliament to fix the defect, in effect finding that no judge is so important or indispensable that the ordinary rules relating to a suspension of and order of invalidity should be ditched to allow him or her to continue serving as a judge.

In this regard the Black Lawyers Association had argued that suspending the invalidity in order for the defect to be remedied would give expression to notions of restorative justice in customary African jurisprudence. It contended that a mistake has been made in good faith by all concerned and should be “forgiven”. It argued that the term “tshwarelo” or “tshwarela” is applied in African jurisprudence, and is applied in “Lekgotla” (African traditional courts), meaning “excusable” or “excuse” and translates to “erasing the wrong permanently”.

But the Court pointed out that such a suspension would be highly unusual if not irregular The suspension would relate to future consequences that, but for a suspension order, would never come to pass. And there is no indication of any material dislocation if the suspension order were not to be granted. There has never been an instance where the Court has made a suspension order in comparable circumstances. Thus:

Granting an order suspending the declaration of invalidity in the circumstances of this case, where proper information providing the basis for an order was not forthcoming from the responsible state organs and where the invalid extension had not yet come into operation, would have been problematic even if the defect was merely procedural. Where it is substantive and will require major rethinking and decision-making on the part of government, the justification for an order suspending the declaration of invalidity is even weaker. ….

The justification advanced for a suspension order related to non-adjudicative responsibilities said to be intimately linked to the person of the Chief Justice. The judicial work of this Court will not be affected by the temporary absence of a Chief Justice appointed in terms of the Constitution. The important advances pioneered by the current Chief Justice in relation to the institutional transformation of the judiciary need not grind to a halt. Presumably the government will not abandon its co-operation simply because the present Chief Justice may not immediately continue in that position. There is nothing that prevents the incumbent Chief Justice from continuing to give his assistance regarding those projects on a practical level to any temporary or future appointment to the office of Chief Justice. A suspension order will perpetuate an unconstitutional extension of the term of office of the head of the judiciary. The interests of justice and the rule of law demand certainty on the issues before us. This view is fortified by the President‟s submission that the issues in this case deserve finality and clarity because their practical implications are imminent.

The ball is now in the President’s court. That the attempt to extend of the office of the Chief Justice was badly handled, goes without saying. But that something good came out of it – in the form of a principled and detailed judgment relating to the independence of the judiciary and the separation of powers – must be welcomed. Let us hope the Minister of Justice and the President learns from this bungle and avoid a similar bungle when they deliberate on who should replace the current Chief Justice.

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.

The inevitable controversy that resulted from this move by President Zuma threatened the integrity of both the office of the Chief Justice and the person of the incumbent. The government made things worse by refusing to admit that the section on which the President had relied might be constitutionally problematic and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of section 8(a) were motivated by a hatred for the Chief Justice.

By personalising and politicising the issue, the Justice Minister placed Chief Justice Ngcobo in an almost impossible position and the government’s original intransigent stance threatened to destroy the integrity of a judge who has served South Africa with distinction.

By then – belatedly – proposing an amendment to the Act that would only extend the term of office of the Chief Justice and the President of the Supreme Court of Appeal (SCA), the Justice Minister further complicated matters as it was far from clear that this new proposal would pass constitutional muster.

Why the Minister and the President had not thought of whether section 8(a) was constitutional and what other legal mechanism could be used to extend the term of the Chief Justice a year or two ago and why it tried to cook the books, so to speak, at the last minute is a question that must be asked. It suggests that either the Minister’s office or the Presidency – or perhaps both – are not on top of the legal issues and do not plan properly. How can one govern a country when one does things at the last minute in the hope that one can bluster one’s way through by denigrating those who insist on upholding the Constitution?

The big losers in this affair are Minister Jeff Radebe and, sadly, the incumbent Chief Justice, who got mixed up in the bumbling of the Ministry of Justice. If he had not decided to resign he would have for ever been tainted because of the incompetence of the Minister. His decision to resign, rather than to be seen to be used by the Executive, saves his reputation.

By resigning Chief Justice Ngcobo is displaying the kind of integrity and respect for his office and for that of the Constitutional Court that those of us who have always admired him, came to expect from him. It spares us all from the rather destructive effects of a long drawn out fight which would have resulted from, first, the declaration of invalidity of section 8(a) and second, the declaration of invalidity of the hastily drafted unconstitutional amendments to the Judges’ Act.

The big question now will of course be who President Zuma will appoint as Chief Justice. Constitutionally he can appoint any qualified person to that post. It does not have to be someone who has served on the Constitutional Court. Nevertheless, I believe it would be undesirable to appoint someone who has not served on the Constitutional Court, because it would introduce an element of blatant politics which have bedevilled the appointment of judges in the USA, where Chief Justice John Roberts were appointed by George W. Bush to that office despite not having served as a judge on the US Supreme Court.

A Chief Justice leads both the judiciary and the Constitutional Court. It is therefore important that such a person should enjoy confidence from among his or her colleagues on the Constitutional Court. This would be more likely if the Chief Justice is elected from amongst the members of the Court. Even if one wished to make a politically “safe” appointment one would want to appoint someone with potential influence over his or her fellow judges on the Constitutional Court, something that an outsider might not as easily enjoy as someone currently serving on the court. A successful Chief Justice runs the judiciary but also builds alliances on the Constitutional Court to secure majorities for the outcome of important cases. An outsider will not be as successful in doing this than an insider.

There are excellent judges currently serving on the Constitutional Court. Any number of them would be able to serve with distinction as a Chief Justice. Of course Deputy Chief Justice Dikgang Moseneke is the obvious candidate, who has displayed the intellect, the legal skills, the composure, the respect for the other branches of government, but also the independence that is required to serve successfully as Chief Justice.

But at the hearing yesterday the issue of whether proposed amendments to the Act would pass constitutional muster was also raised. It is unclear whether the Constitutional Court will address these questions, given the fact that the draft legislation at issue has not yet been debated or passed by Parliament.

The Minister of Justice has tabled an amendment to section 8 of the relevant Act, which - in essence - would provide for  a Chief Justice or President of the Supreme Court of Appeal (SCA) to serve a term of seven years as Chief Justice or as President of the SCA in situations where they would have served a shorter term had the ordinary rules regarding tenure of judges applied to them. The amendment provides for an exception in cases where a person reaches the age of 75 before the seven year term ends, in which case that person will have to retire at the age of 75.

The Act also empowers the the President at any time to remove from office a Chief Justice or a President of the SCA who continues to perform active service in terms of this section ”if he or she becomes afflicted with a permanent infirmity of mind or body which renders him or her incapable of performing his or her official duties”.

It is clear that the second part of this proposed amendment, which deals with the removal from office of the Chief Justice or the President of the SCA by the President, would never pass constitutional muster. The removal of any judge from office is regulated by section 177 of the Constitution. This section entrusts the power to make decisions on the removal of a judge on the basis of incapacity to the Judicial Service Commission (JSC), who is required to make a recommendation in this regard to the National Assembly. In turn, the National Assembly can only confirm the removal from office of a judge by the President of the country if two thirds of its members voted for removal. 

This proposed amendment purports – in a clearly unconstitutional manner – to delegate to the President of the country the power to remove a Chief Justice and the President of the SCA from office if specific circumstances arise. When the Chief Justice serves a 7 year term that extends beyond the 12 year term prescribed by the Constitution for all Constitutional Court judges, the President will, in principle, have a free hand to decide on whether a Chief Justice has become permanently infirm. 

But an Act of Parliament cannot delegate a power given by the Constitution to the JSC and the National Assembly to the President of the country. This would be like an ordinary piece of legislation delegating the power to appoint the Police Chief to the Chief Justice when the Constitution clearly states this power must be exercised by the President of the country.

Whoever drafted this section really should be fired for incompetence because the section is so obviously unconstitutional that every second year student of Constitutional Law would have been able to advise the drafters that this section will never pass constitutional muster. One trusts that when Parliament debates the proposed amendments, this section will be scrapped forthwith. Section 177 of the Constitution already provides for the removal of a judge from office if that judge suffers from incapacity due to old age, so the section is unnecessary in any case.

A more difficult question posed by the draft legislation is whether the amendment is constitutionally invalid because it singles out the Chief Justice and the President of the Supreme Court of Appeal for an extension of their terms. 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 when an Act of Parliament extends the term of office of a Constitutional Court judge.”

The argument could be made that a law of Parliament that singles out the Chief Justice in this way and does not extend the term of office of the Deputy Chief Justice and other Constitutional Court judges is not a law of general application and that Parliament is not empowered to single out the Chief Justice in this manner. Because judicial independence, safeguarded in section 165 of the Constitution, requires security of tenure for judges and also requires judges not to be treated by the legislature in a manner that would allow a reasonable apprehension of bias to arise against a judge serving in a particular position, similarly situated judges should usually be treated similarly by the legislature unless pressing practical reasons exist not to do so.

Given these requirements and because section 176(1) talks about the term of office of “a Constitutional Court judge”, so the argument goes, the legislation must either extend the term of office of all Constututional Court judges or none of them. Singling out the Chief Justice for an extension of his or her term above other Constitutional Court judges might serve as a powerful incentive for any Constitutional Court judge to be subservient to the executive in order to serve for a longer term on the Constitutional Court. This might give rise to a reasonable apprehension of bias on the part of any serving Chief Justice.

Besides, it might be argued, it is arbitrary to make a distinction between the Chief Justice and the Deputy Chief Justice by only extending the term of office of the former, as both positions are explicitly mentioned in the Constitution. The fact that only the term of the Chief Justice is extended, would turn a law of general application into an impermissible law that arbitrarily draws distinctions between different judges not mandated by the Constitution. There is no pressing practical reason to do so, hence the distinction cannot be constitutionally permitted.

On the other hand, one may argue that the Constitution itself distinguishes between the Chief Justice and Deputy Chief Justice on the one hand, and other judges of the Constitutional Court, on the other and bestows the power to appoint the Chief Justice and Deputy Chief Justice on the President. An Act that extends only the term of office of the Chief Justice and not the terms of office of other Constitutional Court judges, so the argument might go, would only follow the scheme already established by the Constitution.

As the President already appoints the Chief Justice – usually from amongst serving judges of the Constitutional Court – and as this position could be viewed – reasonably so or not – as being sought after, would one then not be able to say that an apprehension of bias may arise (reasonably so or not) regarding all Constitutional Court judges, but that this dynamic has been built into the Constitution and should therefore be dismissed as being constitutionally irrelevant – even if such an apprehension might be viewed as reasonable, which would in any case be questionable?

The argument would be that all judges of the Constitutional Court may well be perceived by some (if not by reasonable bystanders) to be potentially less likely to find against the executive and may be perceived as being potentially subservient to the executive because it would be believed that an ambitious judge would rule in a certain way in the hope that he or she would be appointed as the next Chief Justice. If this were to be true, then the Constitution itself mandates this dynamic and any amendments to the Judges Remuneration and Conditions of Employment Act would make no difference to the state of affairs.

Besides, so it might be argued, section 176(1) bestows on Parliament the power to extend the office of “a Constitutional Court judge”, which could be interpreted to mean any of the judges of the Constitutional Court – including the Chief Justice.

I think both arguments are plausible and may well hold sway with the Constitutional Court. However, personally, I would think that section 176(1) should be given a narrow interpretation as it should be read holistically with all other sections of the Constitution – including those sections which guarantee the independence of the judiciary and secure the tenure and financial future of judges. Legislation that tampers with this scheme – even slightly – should therefore be carefully scrutinised. It should be assumed that the Constitution did not empower the legislature to make distinctions between judges serving on the Constitutional Court unless pressing practical reasons exist for drawing such a distinction. 

Given this view, I am leaning towards the argument that the proposed amendments as currently drafted do not meet the requirements for independence, read with section 176(1) of the Constitution. As I have argued before, it would be preferable if Parliament merely amended 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 of service on the Constitutional Court.

Given the fact that the incumbent Chief Justice had unwisely accepted the President’s offer of an extension of his term of office in terms of section 8(a) – which he should have known was almost certainly unconstitutional – it is important for the legislature to ensure that the dignity of the Constitutional Court and the office of the Chief Justice be protected. This can best be done by treating all judges serving on the Constitutional Court in the same manner to prevent any perception arising – no matter how invalid this might be – that special arrangements are being made to ensure that the incumbent Chief Justice remains in office because he is more trusted by the executive or is beholden to it.

Currently the independence of the South African judiciary is guaranteed by section 165 of the Constitution, which confirms that the judicial authority of the Republic is vested in the courts; 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; that no person or organ of state may interfere with the functioning of the courts; and that organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

Section 165, interpreted holistically, confirms that members of the executive – including the Minister of Justice – may not interfere with the functioning of the Courts. Although the Minister of Justice is politically responsible for the administration of justice in South Africa, he or she may not unilaterally impose norms and standards on the judiciary or act in any other way that could be perceived as interfering with the institutional independence of the judiciary or the impartiality of judges.

The Minister can therefore not take over the management of court rolls and cannot tell individual judges that they need to work longer hours or that they need to produce their judgments within a reasonable time as this would be seen as interference with their independence. Yet, when judges take months and – in some cases – even years to produce written judgments, the administration of justice is fundamentally compromised. Some mechanism must therefore be found to ensure that judges are held accountable without interfering with their independence.

At the same time, the Ministry is required to support our judges and to provide the backup to ensure that judges are able to do their wjob to the best of their ability. When a judge’s computer stops working, the air-conditioning in her office is on the blink, the lifts stop working or the toilets are not cleaned, the Ministry of Justice, working with Public Works, must ensure that this is fixed.

Of course, if a judge is particularly unpopular with the executive, there will always be a temptation to “punish” such a judge by not providing adequate support. But as recent complaints by senior judges about conditions at the South Gauteng High Court in Johannesburg has shown, the Ministry may be less than stellar in its support even where the executive has no personal vendetta against a judge or against a particular court. In such cases, it would be important for the judiciary to speak with one voice and to have a champion in the form of the Chief Justice – as the head of the Judiciary – to ensure that the executive provides our courts with the support that they are constitutionally entitled to.

One may therefore view the proposed amendment to section 165 of the Constitution, contained in the Constitutional Seventeenth Amendment Bill, through this lens and argue that the amendment will help to safeguard the independence of the judiciary by clarifying the roles of the head of the judiciary (who happens to be the Chief Justice) and the Minister of Justice regarding the administration of justice. The amendment would add the following subsection to section 165 of the Constitution:

(6) The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.

This proposed amendment must be read with the provisions of the proposed Superior Courts Bill. Section 8 of this Bill states that:

(3) The Chief Justice may, subject to subsection (5), issue written protocols or directives, or give guidance or advice, to judicial officers: (a) in respect of norms and standards for the performance of the judicial functions as contemplated in subsection (6); and (b) regarding any matter affecting the dignity, accessibility, effectiveness, efficiency or functioning of the courts.

Read together, the proposed amendment of the Constitution and the relevant provisions of the Superior Courts Bill will bestow extensive powers on the Chief Justice over the administration of the Courts. However, the power of the Chief Justice is tempered by further provisions which confirm that the “management of the judicial functions of each court is the responsibility of the head of that court”. The proposed section 8(5) of the Bill also requires that any protocol or directive issued by the Chief Justice may only be issued by the Chief Justice if it enjoys the majority support of a forum of judicial officers convened by him or her.

When dealing with High Courts, the forum of judicial officers must include all the Heads of the Superior Courts. A worrying aspect of the draft Bill is that it does not limit this forum of judicial officers to the Heads of Superior Courts. In theory the Chief Justice can decide to co-opt any number of judges to serve on such a forum.  In theory, a number of hand picked judges larger in number than the Heads of Court can therefore be selected by the Chief Justice to sit on such a forum in order to try and ensure that the proposals of the Chief Justice are approved. This is a serious flaw in the draft legislation that needs attention.

That the power of the Chief Justice over the judicial functions of all courts are quite extensive is made clear by section 8(6) of the Bill, which states that the judicial function over which the Chief Justice exercises responsibility include (but is apparently not limited to) the determination of sittings of the specific courts; assignment of judicial officers to sittings; assignment of cases and other judicial duties to judicial officers; determination of the sitting schedules and places of sittings for judicial officers; determination of standards applicable, and procedures to be adhered to in respect of: (i) case flow management; (ii) the finalisation of any matter before a judicial officer, including any outstanding judgment, decision or order; and (iii) recesses of Superior Courts.

The purpose of the amendment of section 165 of the Constitution and the introduction of section 8 of the Superior Courts Bill is clearly to empower the Chief Justice to take charge of the administration of justice to ensure that our courts operate more efficiently. In theory this will improve access to justice and will ensure that all courts function better and faster to serve the public efficiently and impartially. This move has been welcomed by many commentators – most notably by my colleague Richard Calland – because, so it is argued, in order to safeguard the independence of the judiciary while ensuring judicial efficiency, the Chief Justice, rather than the Minister of Justice, should be empowered to oversee the running of our Courts.

Critics will argue that despite the safeguards included in the Superior Courts Bill, the amendments would give the Chief Justice too much power over the running of the Courts. For example, the Chief Justice could issue directives (in consultation with the judicial forum) setting norms and standards for the performance of many judicial functions, including decisions about the assignment of judicial officers to individual cases. However, as I read the section, the Chief Justice would not be able to interfere in a decision made by a Judge President about the allocation of a case to a particular judge. He or she would only be able to issue directives setting out norms and standards to be followed by the Judge President when allocating cases.

Nevertheless, the big weakness of this section as it reads now is that the Chief Justice would be able to manipulate the composition of the forum of judges whose approval will be needed to issue these directives. Given the fact that the Chief Justice is appointed by the President with hardly any involvement of the Judicial Service Commission, and given that the Chief Justice is therefore a clear political appointee, extra safeguards are needed to ensure that better checks and balances are placed on the exercise of the authority of the Chief Justice.

Law makers have a tendency to legislate for current conditions and based on incumbent personalities, instead of formulating laws that would be sound even if the conditions changed and the current personalities retired. The mere fact that most of us trust the current Chief Justice to exercise these proposed powers wisely and in a consultative manner, does not mean that a future Chief Justice will do so. It is therefore important that the proposed legislation be amended to include more stringent checks and balances that will limit the powers of the Chief Justice in order to prevent a power grab in the future.

PS: The Constitution Seventeenth Amendment Bill, read with the Superior Courts Bill, contains other important provisions that will lead to far reaching changes to our judicial system. In the coming days I will discuss these provisions in more detail.

President Zuma noted that those who were challenging his decision to allow Chief Justice Ngcobo to serve for another five years (on the basis that the law he used to do so was unconstitutional) had been silent on this fact for 10 years since it was passed by parliament. “This law was passed by this house 10 years ago after careful consideration. I therefore acted in terms of an existing law,” he told the National Assembly in his reply to the debate on the presidency’s budget. He added, straying from his prepared speech: “You see we can’t make the laws and one day when they are applied if they do not suit our own personal interests, then they want to change them. It is a problem and yet in the same breath we respect the rule of law.”

This view, if correctly reported, is perplexing, to say the least. In a constitutional democracy in which the Constitution is supreme, citizens have a right to challenge legislation on the basis that it is unconstitutional and will usually not do so in the abstract but will only spend the time and money to challenge an impugned provision when reliance is eventually placed on the alleged unconstitutional provisions of an Act.

This happens all the time. In the past, when individuals or civil society groups have challenged the constitutionality of a provision of  an Act of Parliament when that provision was relied on, our government had not suggested that they do not have a right to do so because they had waited too long to challenge the impugned provision. No wonder, as such an argument is based on a fundamentally misconception of the nature of constitutional review.

Either the section of an Act is constitutionally valid or it is not. Citizens affected by it have the right to approach a court to seek clarity on the unconstitutionality of any legal provision at any time after it had been passed by Parliament. The fact that the provision had been enacted years previously does not expunge this right. Nor could it, as our Constitutional Court has made it clear that all legal provisions in conflict with the constitution is objectively invalid – although it would require the Constitutional Court to confirm this invalidity before the legal provision would in fact become a legal nullity.

As I have argued before, given the Constitutional Court precedent on the separation of powers and the independence of the judiciary, a compelling case can be made for the contention that section 8(a) of the impugned Act is unconstitutional. This does not mean that the term of office of the Chief Justice cannot be extended in a constitutionally valid manner. Section 176(1) of the Constitution provides for this as it states 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”.

Section 4 of the Judges Remuneration and Conditions of Employment Act is such an Act. It provides for a Constitutional Court judge to serve for 15 years on the Constitutional Court if he or she had not served as a judge in the High Court before appointment to the Constitutional Court. It also allows a Constitutional Court judge to complete a 12 year or 15 year term even if he or she has attained the age of 70 – as long as the judge is not older than 75. Because of section 4, former Chief Justice Arthur Chaskalson and other judges of the Constitutional Court could serve a full 12 or 15 year term despite the fact of having turned 70 before this term had come to an end.

The most elegant manner to solve the current problem would be to repeal section 8(a) of the Act and to amend section 4 of the Act to allow any judge of the Constitutional Court to serve a full term of 15 years as a Constitutional Court judge, regardless of whether the judge has served on the High Court prior to appointment to the highest court (as Chief Justice Ngcobo has done) and regardless of whether that judge has reached the age of 70. This solution would not require the President to rely on an unconstitutional provision of the Act and would go a long way to address fears regarding the unconstitutional delegation of law-making power to the President and would prevent the creation of a reasonable perception that the Chief Justice was not impartial and independent.

Such an amendment would also ensure that all judges serving on the Constitutional Court are treated in exactly the same manner, thus preventing a situation where the Rule of Law is threatened by the passing of legislation that is not of general application.

Of course, this solution will only work if Parliament acts swiftly. The term of office of the current Chief Justice comes to an end during August. Once his current term ends, it would be impossible to extend the term of office of the Chief Justice because he would not be a serving Chief Justice anymore. One cannot extend the term of office of a judge who is not in office anymore.

I sincerely hope that the President and his advisers will be wise enough to choose this  far more palatable option, instead of insisting that it will continue to rely on a section of the Act that is almost certainly unconstitutional. If they persist, we might well lose the services of the current Chief Justice who is midway through a very important re-organisation of the judiciary. As I have argued before, we need the  current Chief Justice to continue serving in this capacity for the next three years to complete his reforms as this will help to ensure the long term independence of the judiciary. It would be a great pity if this becomes impossible because of the stubborn insistence of the executive to rely on a section of the Act that is almost certainly unconstitutional.

Besides, because it is generally assumed by Constitutional Court watchers (rightly or wrongly) that President Jacob Zuma would rather have a cup of tea with Vusi Pikoli and his buddies from the (now defunct) Scorpions than appoint Deputy Chief Justice Dikgang Moseneke as Chief Justice, and because there are no other obvious candidates for the post, few constitutionalists raised concerns about the extension of the term of office of the highly regarded incumbent Chief Justice.

But now the Centre for Applied Legal Studies (CALS) has upset the apple cart by announcing that it is intending to challenge the constitutionality of section 8 of the Judges Remuneration and Conditions of Employment Act in terms of which President Zuma extended the term of office of the Chief Justice. Section 8 of this Act states that:

A Chief Justice who becomes eligible for discharge from active service… 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 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.

The challenge to this section will be based on the argument that the section interferes with the independence of the judiciary. The independence of the South African judiciary is explicitly protected in section 165(2) of the Constitution, which states that “courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”. Section 165(3) states that “[n]o person or organ of state may interfere with the functioning of the courts”. Organs of state, through legislative and other measures, are also obliged – in terms of section 165(4) – to “assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”.

As our Constitutional Court jurisprudence makes clear, independence has two components. The first component speaks to the impartiality of judges and refers to the state of mind of individual judges that will allow them to act without fear, favour or prejudice in each case that comes before them.

The second component refers to the institutional independence which relates to the relationship of the judiciary to other branches of government (particularly the executive branch) and the safeguards that protect the judiciary as a whole against interference by other branches of government.

While the distinction is not always easy to maintain, the former is safeguarded when individual judges are said to be viewed as free to make decisions in individual cases according to their honest interpretation of the law. Where a judge has a vested interest in the outcome of a case (say, because he or she is a director of the company who is a party to a case being considered before the judge), the independence of that judge can be said to be compromised. When a judges lacks security of tenure or financial independence, the independence of the judiciary might also be compromised at an institutional level.

The test for independence is an objective one. In Van Rooyen and Others v The State the Constitutional Court set out this objective test, stating that one should ask whether the court or tribunal “from the objective standpoint of a reasonable and informed person, will be perceived as enjoying the essential conditions of independence” and can thus be viewed as independent.

It is important that there must be public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is therefore important that a tribunal should be perceived as independent as well as impartial.

The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. One must ask what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.

The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. But it is important to note that this objective test must be properly contextualized.

The perception that is relevant for such purposes is, however, a perception based on a balanced view of all the material information. We must ask how things appear to the well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person. Bearing in mind the diversity of our society this cautionary injunction is of particular importance in assessing institutional independence.

The well-informed, thoughtful and objective observer must be sensitive to the country’s complex social realities, in touch with its evolving patterns of constitutional development, and guided by the Constitution, its values and the differentiation it makes between different levels of courts. The requirements for independence would be more onerous for a Constitutional Court judge than for a magistrate, for example, as decisions of magistrates can be appealed while decisions of the Constitutional Court are final.

Given these principles annunciated by the Constitutional Court, the extension of the term of office of the Chief Justice in terms of section 8 of the Judges Remuneration and Condition of Employment Act potentially presents a problem for judicial independence. It is specifically the first component of that independence regarding the perceived impartiality of the judge that might be implicated by this section.

It may well be argued (and I assume CALS will argue) that section 8 is unconstitutional if tested against the reasonable person test set out above. A reasonable person – one with all the facts at hand – might have an apprehension that a Chief Justice who might want to remain Chief Justice beyond the 12 year term as a judge in the Constitutional Court would not be sufficiently impartial and independent because there might be a reasonable fear that he or she would at least be tempted to curry favour with the President in order to ensure that his or her tenure is extended.

Although he or she might not do so (and although there is absolutely no suggestion that Chief Justice Ngcobo has done so or will do so in future), an objective person might well be found to have a reasonable apprehension that a Chief Justice might not be impartial when considering cases involving the executive. The personal aspect of independence and impartially is therefore implicated.

The argument is that a reasonable apprehension may arise that, given the existence of section 8 of the Judges Remuneration and Conditions of Employment Act, the Chief Justice, once appointed, might be tempted to rule in favour of the President and his government or will not criticise it harshly because he or she would have a personal interest in having his or her term of office extended – which would only happen if the President agreed to the extension.

This is not the end of the matter, though.

One may argue that the general rules regarding independence are qualified by section 176(1) of the Constitution (which was inserted in the Constitution in 2001 to provide for the extension of the term of office of then Chief Justice Arthur Chaskalson) as it explicitly allows for an Act of Parliament to extend the term of office of a Constitutional Court judge. An Act which extends the term of office of all sitting Constitutional Court judges to 15 or 20 years would therefore probably be constitutionally valid as this would be allowed by section 176.

One may also argue (as President Zuma’s legal advisers will surely do) that section 8 of the Act does just that by handing over to the President the power to extend the term of office of the Chief Justice. Parliament, so it can be argued, therefore provided for the extension of the term of office of a Constitutional Court judge as provided for in section 176. Section 8 can therefore be seen – at a real stretch – as an Act of Parliament extending the term of office of the Chief Justice which is allowed by section 176(1) and which would therefore be constitutionally valid.

A better (and far more plausible) view is that section 176(1) of the Constitution does not save section 8 of the Act as the Act does not itself extend the term of office of a Constitutional Court judge but delegates that power to the President – the head of the executive. Section 8 unconstitutionally delegates the power to extend the term of office of the Chief Justice (which the Constitution awards to  Parliament) to the President.

Both impartiality and independence relates to the ability of a judge not to be influenced by the executive and not to be seen to be prone to such influence. As judicial independence is safeguarded elsewhere in the Constitution in quite stark terms, and as section 176(1) must be read in conjunction with those safeguards, the argument would be that section 176(1) of the Constitution should be read narrowly not to allow Parliament to delegate the power to extend the term of office of the Chief Justice to the President. (There is also a separation of powers problem in that a law-making function is being delegates by this section to the President, something that was found in the Western Cape judgment to be unconstitutional.)

The Constitutional Court is often called upon to make decisions about legislation piloted through Parliament by the executive (headed by the President) or to adjudicate on the constitutionality of acts by the President and members of his executive. A reasonable person may well have a reasonable apprehension that the Chief Justice, whose term may be extended by the President, may be subtly influenced not to rule against the executive. It is important to note that this is about the perception created by the Act and not by whether – in fact – a Chief Justice will ever so be influenced.

As section 176(1) does not explicitly give the President the power to extend the term of office of the Chief Justice, section 8 may therefore very well be viewed as being unconstitutional.

A better approach to section 176(1) would be that it gives Parliament the power to extend the term of office of all sitting judges from 12 years to, say, 15 or 20 years. This view would also be in line with the tenet of the Rule of Law that Parliament should only enact laws of general application and should not enact legislation that applies to an individual person to address a peculiar individual situation.

When section 176 of the Constitution was amended back in 2001, many constitutional lawyers argued against the amendment, arguing that despite the high regard in which they held then Chief Justice Arthur Chaskalson and despite his brilliant tenure as Chief Justice, as a matter of principle, the terms of office of Constitutional Court judges should be fixed to prevent any perception of bias or a lack of independence. The same argument still holds.

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.

At the time many constitutional lawyers argued that this amendment was unwise and opposed it. Some lawyers who respected or even revered Chaskalson had a problem with the amendment (generally known as the “Chaskalson amendment”) because it was argued that as a matter of principle it was unwise for politicians to be involved in extending the term of office of a judge — especially the Chief Justice.

The problem, so the opponents of the amendment argued, was that it could create the perception amongst ordinary people that the judge was not independent. Every time the judge ruled in favour of the government, suspicious or cynical commentators (and, let’s face it, that would include almost anyone in the media) would ask whether the particular decision had anything to do with the judge’s ambitions to continue acting as a judge. Where the judge happened to be the Chief Justice this suspicion would become even stronger.

In the event the amendment was passed and, in the same year, Parliament passed the Judges Remuneration and Conditions of Employment Act to give effect to the intention of this constitutional amendment. Section 8 of this Act states that:

A Chief Justice who becomes eligible for discharge from active service… 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 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.

The President can therefore decide to extend the term of Office of the Chief Justice. In the end Chief Justice Chaskalson retired without these sections being invoked. However, it appears as if section 8 of the Act may now be invoked to extend the term of office of Chief Justice Sandile Ngcobo. Justice Ngcobo’s term as a judge on the Constitutional Court comes to an end later this year. He has only been Chief Justice for a short period of time and many would argue that it would be a pity if he had to retire now.

Justice Ngcobo has been an energetic and thoughtful Chief Justice and has initiated many important initiatives, including discussions about important changes relating to the creation of the Office of the Chief Justice. In order to secure the administrative independence of the judiciary, it has also been proposed to change the Constitution to emphasise the fact that the Chief Justice was the head of the entire judiciary.

I am therefore in two minds about moves to extend the term of office of the current Chief Justice. As a matter of principle I endorse the view that the Constitutional Amendment as well as section 8 of the Judges Remuneration and Conditions of Employment Act should never have been passed. It is not in the interest of the judiciary that the term of office of the Chief Justice may depend on a decision by the President.

Although the integrity of the current Chief Justice is beyond reproach and I do not believe that he will ever decide a case based on such considerations, every time the Chief Justice rules in favour of the executive, suspicious individuals might be tempted to speculate about whether this was done to ensure an extension of his term of office.

But perhaps a compromise could be reached that would allow for the extension of the term of office of the Chief Justice to allow him to complete important initiatives that would strengthen the independence of the judiciary, while minimising the damaging speculation in the media about his motivations in deciding a case in a particular manner. President Zuma should interpret section 8 to mean that an extension can only be granted once and must be for a predetermined period of, say, 5 years. When announcing the extension this should be made clear.

This will ensure that if the Chief Justice hands down a judgment in favour of the executive — based on his interpretation of the text of the Constitution, the relevant precedent, and his understanding of the social and economic context in which the decision has to be made — not even the most suspicious and ever-complaining members of our society will be able to charge that the decision was based on anything but legal considerations. This will protect the dignity of the Chief Justice and his office and will inoculate him from any scurrilous charges that he is not sufficiently independent.

In an ideal world, however, the original constitutional amendment as well as section 8 of the Judges Remuneration and Conditions of Employment Act should be scrapped. There were good reasons for the decision of the drafters of the Constitution to limit the term of office of judges of the Constitutional Court to between 12 and 15 years. These amendments subvert the original intensions of the drafters and creates the strange situation in which a Chief Justice could serve for 25 or 30 years on that court while other judges would normally be limited to a 12 year term.

We do not want to follow the US example where a President can decide on who to appoint to the US Supreme Court partly based on how young the person is and how long he or she may serve on that court. Those considerations have arguably subverted the appointment of US Supreme Court justices and the best candidates are not always appointed. (Of course, another reason for this is that the President’s nominees must be confirmed by the Senate and Presidents therefore also choose judges who they believe can be confirmed without too much fuss.)

In any event, it is important that President Zuma handles this matter with the necessary care.