How to solve the problem with the term of the Chief Justice

It is a great pity that President Jacob Zuma – in responding to various challenges to the constitutionality of section 8(a) of the Judges Remunerations and Conditions of Employment Act – has sought to politicise the issue. Dismissing criticism of his reliance on this section to purportedly extend the term of office of Chief Justice Sandile Ngcobo, President Zuma yesterday called the move to uphold the principles of separation of powers, independence of the judiciary and the Rule of Law “politically motivated”.

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.

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