Senekal last week had nothing to do with solutions. It was all about politicians’ testosterone. It was all about politicians’ egos. What useful idea came out of all that heat and noise generated by all those politicians in Senekal last week? There is nothing. Nothing that makes SA a better place. Nothing that leads us to a better understanding of race relations in SA after 1994. Nothing that is a solution to farm murders – many of whose victims are poorly paid, desperate black people – or a solution to the incredibly horrendous murder and crime problem in this country.
As predicted the Constitutional Court today declared section 8(a) of the Judges’ Remuneration and Conditions of Employment Act invalid. It went further, though, and also found that the proposed amendments to that Act now before Parliament, which would have extended the term of office of the Chief Justice through an Act of Parliament would also have been unconstitutional.
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.
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