Constitutional Hill

Why extend the terms of Constitutional Court judges?

A journalist sent me the most curious draft Bill which – if passed – would amend section 176 of the Constitution. At present that section 176, read with the relevant legislative provisions, limits the terms of Constitutional Court judges to a non-renewable term of between 12 and 15 years (up from 7 years in the interim Constitution).

The proposed amendment of section 176 will extend the term for Constitutional Court judges who will be able to serve until they reach the age of 70 – regardless of how long they had already served on the Constitutional Court. If passed, this will mean that Chief Justice Sandile Ngcobo appointed by Jacob Zuma last year – who currently will have to retire in 2012 – would be able to serve as Chief Justice until 2023 (along with judges Cameron and Froneman who would then also have to retire in 2023).

Deputy Chief Justice Dikgang Moseneke, on the other hand, will then have to retire in 2017 – long before the end of the term of the current Chief Justice. The proposals would therefore make it impossible for him ever to become Chief Justice. Newly  appointed Judges Chris Jafta and Bess Nkabinde will then serve until 2029, while Justice Mogoeng Mogoeng, a lay-preacher, will serve until 2030.

The question that comes to this suspicious mind is: why has Minister Jeff Radebe made this proposal now? Did he consult the Chief Justice and the other judges of the Constitutional Court? Why wait with the proposal until after four of the most compassionate and progressive judges have retired from the Constitutional Court and four new judges were appointed by the very guy who has had several run ins with the courts because he took money from a crook and then did favours for that crook?

I for one, smell a rat.

When the Constitution was drafted there were long debates about the term to be served by judges of the Constitutional Court. It was pointed out then that South Africa should avoid the American example, where Supreme Court justices serve for life or until they fall over or retire. Sometimes they serve for 30 years or more, thus ensuring some influence for the President who appointed them many years after that President had retired or even died.

Because judges of the South African Constitutional Court have enormous powers and because the exercise of these powers have political ramifications, it was felt that the Constitutional Court judges – unlike High Court and Supreme Court of Appeal judges – should serve a fixed term of no more than 15 years. In this the drafters of our Constitution followed the wise model of the German Constitution and the Constitutions of many other modern democracies.

The reasoning was simple and clear. Judges of the Constitutional Court exercise power that will have strong political ramifications. They are not in effect appointed by the Judicial Services Commission (JSC) in the same manner as the judges of High Courts but are selected by the President from a list prepared by the JSC.  The President also appoints the Chief Justice and Deputy Chief Justice without having to follow the advice of the JSC.

By giving the President a decisive role in the appointment of the judges of our highest court, the Constitution recognises the fact that this court plays a more political role than the other courts. It can declare invalid the actions of the President, has to confirm the unconstitutionality of legislative provisions and, heaven help us ever having to go there, would be able to rule on the validity of an election result.

A relatively regular turnover of judges of the Constitutional Court would therefore ensure that a new President would have some say in the appointment of the Constitutional Court judges as the 12-15 year terms of Constitutional Court judges come to an end and they have to be replaced. This would ensure that the leader of a defeated political party would not be able to exert undue influence on our legal  system by appointing Constitutional Court judges that will serve perhaps far into the future. One would not want judges to serve for 30 or 40 years when that political party whose leader had appointed them had already faded into obscurity or had even disappeared (as the National Party has indeed done).

Imagine these proposals were in place in 1990 and FW de Klerk had appointed 40 year old judges to the Constitutional Court who could then serve until they were 70. That would have meant that the Constitutional Court would have been packed with people appointed by De Klerk and would have been able to serve until 2020 – long after the demise of the National Party. If de Klerk had used his power in a Machiavellian manner to ensure the appointment of judges that were in effect pro-National Party, the Constitutional Court would have been able to thwart much of the ANC’s transformation programme.

Some High Court judges who currently still serve on our courts were appointed before the end of apartheid, but their decisions can always be appealed to the Constitutional Court. Imagine pro-apartheid judges were allowed tos erve on the Constitutional Court for the next 30 years? How undemocratic would that be?

This would have been bad for democracy, bad for the legitimacy of the Courts and bad for the Constitutional project as a whole. It would also have invested the appointment of Constitutional Court judges with so much more significance, as a President would be far more likely to choose a mediocre but reliable party hack for a position on the Court if he or she knew that the appointment would last for 30 or 40 years and might still help to thwart the political programme of a party who defeated the President’s party at the ballot box.

Regardless of how one feels about the judges presently serving on the Constitutional Court – and in my humble opinion there are several brilliant judges serving on that court at the moment, along with a few other judges who one would not be able to  describe as intellectual giants – this proposal seems wrong and dangerous.

It upsets the careful balance devised by the constitutional negotiators which recognised the political role played by the Constitutional Court, but limited the term of the judges serving on this court to ensure that one party in power did not pack the court with its supporters to rule South Africa from the grave – so to speak.

In the absence of cogent and plausible arguments for this amendment, it would not be unwise to suspect that there is some inherently undemocratic about this move and that malicious intent might be behind these proposals. Given the fact that these proposals are brough to you curtesy of the same people who engineered the appointment of that ethically challenged guy called Menzi Simelane as head of the NPA, I am deeply suspicious about the motive behind this proposal. Surely, it will be seen by many people as an attempt by some in the ANC to help entrech their power, if not until Jesus comes then at least for the next 30 years.

  • Graham

    If Radebe is involved, one can take it as a given that there is malfeasance afoot.

  • George Gildenhuys

    I would think the CC-judges would be in favour of this, think about it, a guaranteed job for life and one that has actual power and influence…

    Prof I think you are correct, there is a stench here…

  • Chris

    It may mean power and influence, but also a 14 hour or more work day until you are 70. As far as I know the CC judges have the same benifits as all the other judges: Pension = salary, for life. If I were a CC judge I would really want to retire after 12 years.

  • Peter John

    I am not sure that it is all downside.

    If indeed one has a bench of good CC judges surely a long term of tenure is in the interests of stability (as opposed to changing the crew regularly in accordance with political whim)?

    I think that I would rather live with whom we have in the CC now than trust the future to the current JSC. But maybe I am unduly concerned.

  • Maggs Naidu

    Peter John says:
    May 24, 2010 at 14:23 pm

    “If indeed one has a bench of good CC judges surely a long term of tenure is in the interests of stability”

    That presupposes that the wise women and men who drafted our constitution did not give sufficient thought to a vital component.

    I think it’s preposterous – kinda like ruling from the grave, it is.

  • Dumisani

    Imagine if Gauntlett was on the Constitutional Court. Wim Trengrove too. And yes, Paul Hoffman. To serve for 20 , 30 years. Wishes. Horses.

    The reality is that your concerns are more out of fear. The future is black (literally and figuratively).

    What Antjie Krog should also have mentioned is that minority groups know that what they cannot win (or end up losing) at the ballot box they can always win at the constitutional court. To have it stacked by those who are not ‘with us’ is anaethema. So say these groupings.

    Unfortunately, you don’t indicate what a ‘regular turnover’ is. As for those retired judges, seriously, what could have been done (six month into the administration?- I assume this was your tounge in cheek moment!!)

    The fact of the matter is that there will always be turnover. To conflate the inadequacies of the JSC (as you are wont to write) with the term proposals distract from the intent.

    How will a longer term enhance the effectiveness of the CC?

    E&EO…

  • unknown

    @Peter John

    Interests of stability for who? and what is stable about changing the life span of a judge now? surely if it was about stability this would have been change along time ago, and not wait till langa and others were of the bench.?

    It does smell of foul play… no doubt… Also in such a young democracy, isn’t it best to for change that they have a limit life span. If it’s such a politcal position, then clearly its of more importance that the stability comes from the limited life span, and that things become more or less equal. It beggars logic of why judges in general has such long life spans. Surely, it seems rather primitive at best… monarch-cal if ever there was a word… :P

  • Zamandaba Sibiya

    I think most of you commenters talk about something you have no clue of and this is unfortunate because I think you display your ignorance and reliance on the sayings of the media. First of all our constitution calls for all 3 organs to be independant of one another and this has happened as called for. Secondly although there has been a visible overlap between the legislature and executive, the judiciary remains untainted. Our con court juges have taken oaths to serve the country with regards to fairness and equality. They are ruled by the constitution and can not make arbitrary decisions.Just as Mbekhi had appointed Honourable Puis Langa, Zuma has appointed CJ Sandile Ngcobo who is more than qualified to take on the position

    The day even one of you read a judgement that you cleary think is biased from the Con Court, I challenge you to look at the judges reasoning behind this decision and if the premises are flawed, I call on any one of you to let me know…. AND THAT IS A CHALLENGE!

    Until then stop getting your opinions from the media and actually take time formulate your opinions…

  • sirjay jonson

    Zamandaba Sibiya says:
    May 24, 2010 at 17:38 pm

    Well, likely your comments are the proverbial fox in the hen house, with respect to fellow posters’ opinions. However, I think you make a valid claim in one respect. What dissatisfaction is there amongst the legal community about CC decisions to date?

    However, Zamandaba, I do recall an aging judge in Canada on that fair country’s supreme court who at 70 as chief justice had difficulty restraining his bowels while sitting on the bench, a great embarrassment to everyone; and who insisted on a decision much against the public interest, about a man, one Steven Truscott, sentenced to hang at 15 for a crime he didn’t commit, arrested at 14, the appeal being for an overturn of the original conviction.

    At this point everyone knew about the boy, then a man after having served many years, his execution having fortunately been earlier appealed due to his age. This judge, Tessereau (I believe) forced a decision to uphold, for no other reason than to appease the sitting government and protect in his opinion the authority of the court.

    Many years later Truscott was pardoned. I personally knew him, and in recent years he has partnered with the could have been ‘middleweight champion of the world”, also falsely convicted of murder, a black man in the US, to act on behalf of wrongly convicted and sentenced to death ‘victims’ both in the US and Canada, one Hurricane Carter.

    The difficulty with older judges, is that the older you get, the more conservative, impatient, and status serving you become. I’m in favour of the 15 yr limit. It makes sense.

  • Chris

    sirjay jonson says:
    May 24, 2010 at 18:26 pm

    CC judges make mistakes, because they are human. I don’t read the full judgement in every CC case, but I think I can say each and every one of them are doing their best and are serving justice with integrity. And I think all of us want it to stay that way.

  • sirjay jonson

    Chris: I would agree. So if the system works generally well as it is, why change it? I don’t recall any CC decisions since 94 which caused me great pain or worry. Correct me if I’m wrong.

  • Zamandaba Sibiya

    well Sirjay I think one thing you should consider is the fact that to serve as a judge you need to be fit and proper to hold the position.Im no expert on that but using common sense I would like to say that a judge with difficulty restraining his bowels while sitting on the bench, is not a fit and proper official.

    One thing I think you fail to realize is the fact that JUDGES ARE NOT INDISPENSIBLE, they can be relieved of their duties to serve. Secondly there are 11 judges in the Con Court, so the chances of a judge wrongly making a decision is unlikely and is bound to be a dissenting judgement

  • Zamandaba Sibiya

    I think another thing that we have to consider is that what does not bend breaks easily, so we can not be afraid of change unless we have valid reasons to do so and thus far non of my fellow commentors has given any valid, legal reasons for opposing this change.

  • sirjay jonson

    Zamandaba Sibiya
    May 24, 2010 at 21:03 pm

    I agree, lets here the valid legal reasons for opposing this change. Prof?

    On a lighter note, or rather should I say a darker note:

    “Everybody knows

    that the dice are loaded

    everybody knows the good guys lost

    the fight was fixed

    the poor stay poor”

    Leonard Cohen

  • unknown

    @ Zamandaba Sibiya

    “One thing I think you fail to realize is the fact that JUDGES ARE NOT INDISPENSIBLE, they can be relieved of their duties to serve.”

    Im also no expert but this is danderous if the life span of a cc judge is a life time. It means that if the President appoints 9 men that is sympathetic to him, they would more than likely make if difficult for the next president to fix certain errors that the previous president has made, for example. Also, its difficult to just remove a judge without probably cause!? one would assume!

    “Secondly there are 11 judges in the Con Court, so the chances of a judge wrongly making a decision is unlikely and is bound to be a dissenting judgement”

    this statement is rather illogical. Since the 11 judges can be influenced, if appointment by the president. They could then influence judgements after the president has left, and as Pierre pointed out, could also influence election results, as the case probably will be if the ANC has to loose. That election would be very close! One doesn’t just go from 80% to 30% for no particular reason. I would assume 1 counter argument that causes reasonable doubt over the appointment of judges for a lifespan is probably enough to scare anyoone… at least those of us … :P

  • sirjay jonson

    unknown
    May 24, 2010 at 21:55 pm

    On the button: We musn’t have sterility and stasis for 30 years or more. I, for one won’t even be alive them. Society evolves, and we hope that SA society will evolve as is possible ass the primary society on the Continent. Most don’t recognize it, but CC judges determine the venue that the country becomes,. and the country’s venue needs to change as we all evolve, personally, governmentally. The present nonsense will not remain, it’s just the energy of the moment, all things change, evolve. To make stasis the CC for 30 years, a long time time indeed, will benefit no one, not even the present ANC which will evolve with the times. The idea is absurd and is anti ANC as well as anti Democracy.

    When oh when will the ANC start to make decisions that benefit not only themselves but the country.

  • sirjay jonson

    Final comment my friends: the ANC will not be the same ANC 10 years from now.
    Those of you who make the decisions therein, consider this.

  • kenneth

    the assumption which you guys are making is that the cc judges are there to serve the interest of those who appointed them i.e (president of the country),so yu would like the current judges to make way when new faction of ANC come to power in 10 years time, so in other words you do not have faith in judiciary of the country (appointed by the person who took money from the crook), when these guys were appointed prof said “it could have been worse” meaning that it was bad.

  • zamandaba Sibiya

    @unknown.
    “this statement is rather illogical. Since the 11 judges can be influenced, if appointment by the president. They could then influence judgements after the president has left, and as Pierre pointed out, could also influence election results, as the case probably will be if the ANC has to loose”

    My learned commentor your argument is flawed and does not follow. The way it works is that when only one judge makes a decision with a different outcome, the others are regarded as the majority judgement and this is the decisive jugdement.
    As for your misconceptions of influence being present, I would love to think that you are not living under a rock so to say and you were aware of the allegations put against Judge Hlophe of trying to influence the Con Court to be in favour of the ANC, just tell me what that resulted in?

    What I find most disturbing is that when you have no faith in our judiciary, I just want to hear plain hard facts that are not based on she thinks…he thinks basis. And as of yet I have not received anything.

    As much as we would love to dispute, our Con Court judges do not have this indivisable discretion we tend to imagine, they are guided by the ghosts of precedents and the constitution which was if we recall drafted by the people for the people.
    So really the odds of 11 spineless easily influenced crooks in the Con Court is not likely and I stand to be corrected.

  • zamandaba Sibiya

    As a last note I would love to think that one gains wisdom as they age and a sense of doing what is fair and equal. More so what further point would you want to prove when your older?
    I would like to believe having the honour to serve in the Con Court gives you more than enough status and to the contrary, I believ that it is when you are younger that you are more likely to succumb to influence perhaps in a bid to establish your self.

  • Maggs Naidu

    zamandaba Sibiya says:
    May 25, 2010 at 8:19 am

    “So really the odds of 11 spineless easily influenced crooks in the Con Court is not likely and I stand to be corrected.”

    For now there’s no chance of that.

    If the 12 year limit is removed, it may change.

  • zamandaba Sibiya

    @Maggs

    How may it change please just explain simply that?

  • Maggs Naidu

    zamandaba Sibiya says:
    May 25, 2010 at 8:30 am

    One of the wonderful things about our CC is the constant renewal.

    If it gets to be the same faces for several decades, chances are that different dynamics will occur.

  • Pierre De Vos

    zamandaba Sibiya, you misunderstand my point.

    First, even if there are 11 judges on the CC, one may very well disagree with one of their judgements. This is perfectly normal and expressing criticism of the outcome of a judgment based on a critique of the legal reasoning of that judgment and the outcome achieved is what keeps judges accountable. The judges themselves accept this. Obviously, unless there are really overwhelming evidence that a judge is crooked or corrupt, one will not and should not attack a judge personally or launch ad hominem attacks on a judge. Personally I have criticised many judgments of the Constitutional Court which I thought have been wrong: Volks v Robinson; Joe Slovo; Jordan etc. As an acdemic it is my job to criticise these judgments and to say why.

    Second, it would be foolish and dishonest to pretend that judges have no normative commitments and that these commitments do not play a role in their decisions (read Albie Sach’s “The Alchemy of Life and Law” for a tentative exploration of this obvious fact). This does not make judges dishonest or biased – just human like the rest of us. They try their best to be fair, impartial and principled, but they must have principles and values to start with to be principled. When choosing judges for the Constitutional Court – the most political of courts whose judgments will often have serious political ramifications – obviously the ruling party and its President will try and choose judges whom it thinks most closely resembles its own values and normative commitments. This is natural. But we have elections every 5 years and governments may change. As a matter of principle I think it is wrong to insulate the court froom this democratic fluctuation completely. Judges have security of tenure so that they can act fearlessly and without fear favour or prejudice and this is a good thing. But because the President has such a decisive say in the appointment of CC judges I think it is an important principle of democracy that the term of CC judges should be limited to prevent a President from packing the court for a generation to come with judges that happens to share his or her normative commitments. This is not a personal thing and is not aimed at any sitting judge. I held the same view when moves were afoot to extend the term of then Chief Justice Chaskalson – although I have the highest respect and admiration for that man.

  • Gwebecimele

    Interesting article.

    The Mail and Guardian’s lawyers said on Monday it was impossible to believe former chief justice Arthur Chaskalson allowed two judges to act as presidential envoys just a month after ruling judges could not act as government functionaries.

    The newspaper is asking the North Gauteng High Court for a report on Zimbabwe’s 2002 elections drawn up by Constitutional Court Judges Dikgang Moseneke and Sisi Khampepe.

    The newspaper’s advocate Jeremy Gauntlett said the presidency’s claim the two judges were acting as presidential envoys was not true.

    He said Chaskalson was chief justice during this period and had written the Constitutional Court’s judgment preventing then Judge Willem Heath from acting as a prosecutor or as a government official.

    Gauntlett said it was unthinkable to say he then turned around and said two judges could act for the president in Zimbabwe.

    This issue is crucial to the case as the presidency said it could keep this report secret because the two judges were the embodiment of the president during their trip.

  • Sibusiso

    @Prof and your blind followers. I find your attempts at misinformation quite amazing and entertaining to say the least. First, what draft Bill?, where can one find it?. The DOJ website does not have it.

    Secondly, section 176 of the Constitution is clear. The “draft Bill” you are talking about would have no effect or force until section 176 is amended. I say this this because, lets suppose that this draft Bill of yours exists, and says what you allege. Its will end up an Act of Parliament, and remain subject to the Constitution. Now if you read section 176 with section 2 of the Constitution. You will come to the conclusion that for that Bill or act to have any effect, section 176 would have to be amended or made weak by an amendment to section 2.

    Your artilce above is just like the propaganda that used to be peddled by the former minister of information in Nazi Germany. Which by the way is still pedddled by people like you. How intellectually dishonest are you?

  • unknown

    @Sibusiso

    Huh?

  • Chris

    Sibusiso says:
    May 25, 2010 at 11:02 am

    Here is is, Sibusiso. I found it on the DOJ website without any difficulty. The proposed amendmend to sec 176 can be found on page 5 of the Bill.

    http://www.justice.gov.za/legislation/invitations/invites.htm

  • Pierre De Vos

    Ag no man Sibusiso, please think before you write. An AMENDMENT of the Constitution (which I refer to), well, AMENDS the Constitution. It then become part of the Constitution and as long as it was passed according to the correct procedure cannot be tested against any other part of the Constitution. This much is clear from the post. How you could have thought otherwise is beyond me. In any case, now that this has been made absolutely clear, I think an apology on your part is in order. You don’t have to phone personally, just post the apology here.

  • Kay

    Haha! Now you’re Hitler! You clearly shouldn’t be going around expressing yourself like this, even if it’s your blog! (Pls do note the sarcasm)

    I’ve been following your posts regularly. It never fails to challenge my ideas of what I “know”. I’ve got a very young legal mind and I must say, although I may not agree with some posts I find them rather intimidating.

    My ideas on what the law is and what it should be remains rather idealistic, scary, I know!

    In a perfect legal world although the judges are appointed by the president with the help of the JSC, after they’ve been elected, they should be free from political pressure, judicial independence guaranteed-right?? Because they’re elected for a set period they shouldn’t have to worry about pleasing whoever’s in power…

    I can’t think why this section needs to be amended? In my view, it’s purpose and function is undoubted… how would we be able to progress as a democracy if a golden oldie (no disrespect intended) is allowed to impose opinions belonging to a bygone era? There is a great need for our most influential judges to be in tune with the times. This becomes more difficult when they’re as conservative as high teas because they’ve been doing what they’re doing for eh.. a lifetime!

  • Gwebecimele

    Same guys who are incapable of stopping rapes in prison.

    http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20100526044014129C461916

  • Maggs Naidu

    @ Pierre

    “An AMENDMENT of the Constitution, well, AMENDS the Constitution” – really? No kidding eh!

    @ Sibusiso – if you cannot find the doc on the DOJ website, does that mean that Pierre is “intellectually dishonest” or does it mean that you are a tad bit slow?

  • Zebulon

    Give S’bu a break, his computer was slow and it affected his legal reasoning. On a serious note Prof, the memorandum to the proposed Bill states clearly that the rationale for extending the term of office up to 70 years is to bring it in line with other legislation governing the terms of office for judges in the SCA or High Courts. It reads thus “Section 176 of the Constitution is amended in order to align the term of office of a judge of the Constitutional Court with that of other Superior Court judges. The effect of this amendment will be that the present non-renewable 12-year term of office of Constitutional Court judges would be replaced by the conventional dispensation in terms of which a judge continues in active service until he or she attains the age of 70 years or, if he or she, on attaining that age, has not yet served for 15 years, until he or she attains the age of 75 years or has completed 15 years’ active service, whichever occurs first.” Without being in favour of the Bill, the criticism from both Pdv and forumites are not directed at the rationale for such proposal but the proposal itself. If you look at the stated rationale, it is said that this is a conventional dispensation. Therefore, the contrary views as appear in this forum are unconventional. I think what is required is the holistic review of the terms of offices for the judiciary or judges. It should not be acceptable to have different terms of office for the same company merely because the staff at the head office performs an important work than staff at the branches.

  • Vulo

    Just a laymen thought. Is’nt the US supreme court judges tunure for life? Is it not working well there? If so what’s the problem here.

  • thabang makgalemele

    prof i think you are entirely correct and making cogent and valid points. the bill virtually envisages some form of relationship between the executive and the judiciary, which is broadly at odds with the doctrine of separation of powers tacitly enjoined by the constitution. the bill is undoubtedly ill-conceived and will do more harm than good, it is perturbing as it will undermine the fundamental principles entrenched in the supreme law of the Republic.

  • Maggs Naidu

    Vulo says:
    May 26, 2010 at 11:52 am

    Maybe President Zuma wants to be a three or four or five term President.

    It would be easier to get the chages to the constitution if we had the same CC judges for ever and ever – kinda like if you can have it, so can I.

    :)

  • Zebulon

    @Thabang, I am doubtful whether you have laid your eyes on the Bill and its Memorandum on the Objects of the Bill. If you re-read Prof’s posting you will realise that he somehow acknowedges that the is not conversant with the rationale for the proposed amendments. Therefore his reaction, is somehow knee-jerk but challenging the drafters of this proposed Bill to put forward their argument for such proposal. Now I am referring you to the Memorandum of the Bill so that you could understand its rationale thereafter make a valid argument. I have no idea how you come to the conclusion that the Bill upsets the separation of powers or something like that.

    Vulo, while I acknowledge that I have no idea of the US system regarding its term of office, the understanding within the Justice Department seems to be that the extension of the term of office up to the age of 75 years, is a conventional dispensation. I am sure the Justice Department has evidence in the form of research to back up such argument. Even if US is find to have different system, it remains immaterial so long as the drafters of the Bill can show that number of developed jurisdictions follow the proposed approach.

  • Pierre De Vos

    Zebulon, I am well aware of the purported reasons for this amendment. That is why my post addressed it (you might have missed it because my argument was perhaps a bit too subtle for you). I address it by giving a long explanation why the judges of the Constitutional Court are currently treated DIFFERENTLY from the judges of the High Courts and the SCA and why that is a good thing. I have thus addressed the reasoning provided in the memorandum. The memorandum provides a technical and formalistic reason (making the terms of all judges the same). I provided a substantive argument (including the historic reasons for the difference as well as the democratic impulses of the present system). This the memorandum does not address. It is like proposing a change to the Constitution to have members of the NCOP elected in the same manner as members of the National Assembly and then to write a memo in which one says the reason for the change is to bring the treatment of these two bodies in line with one another but disregarding the very reasons why NCOP members are selected differently from NA members (the reason is that NCOP members are supposed to represent the interest of the provinces in the national parliament). It is not really a reason at all – merely a description of what one wishes to do. Do you find any fault with my substantive reasoning?

  • Zebulon

    Prof, I am not suggesting that your reasoning is at fault. It is just that your post subtly suggests the existence of malicious intention behind such proposal, i.e. the proposed extension of the term of office for CC judges. I am in no way ruling out such possibility, but reading from the Memorandum on the Objects of the Bill, one needs to give the drafters the benefit of a doubt. I know that the Memorandum does not contain sufficient information to make informed decisions as one would have liked. However, I wholeheartedly concede that despite the good intentions of the drafters, their proposed solution for extending the terms of office up to the age of 75 years will have adverse effect on our democracy and impact negatively on the trias politica principle (i.e. separation of powers). Therefore I making distinction between the intention and consequences flowing from that intention. I believe that Dept of Justice failed to evaluate or measure the impact of their proposed solution. They should have presented various options before concluding that their solution is conventional. For instance, instead of tempering with the Constitution to align the terms of judges with other legislation, they should have tempered with these other legislation regulating the terms of office for judges in courts other than CC. To me that would be conventional because you will be aligning these legislation with the Constitution and not the other way round. I guess the problem lies in the credibility of the Department of Justice and its Minister. Lately, it has become difficult to believe what they are saying including their intentions. Because if the intention is good, people will be free to offer correct solution to the problem. At the moment, it appears no one believes that different regime providing different terms for the judiciary is a problem that needs to be fixed.

  • Anonymus

    Perhaps the draft bill has a monetary motive behind it? Don’t some of the justices receive remuneration other than the salaries? This particularly interesting article is a good example of that: http://www.iolproperty.co.za/roller/news/entry/govt_paid_r18m_for_tambo.

    Now, imagine if you could have access to that wonderful remuneration until the age of 70, or even 75. If necessary, draft legislation to double the amount of time that you will spend in your future mansion. Sounds perfectly logical to me.

    My comments are entirely tongue-in-cheek and hypothetical, of course. ;)