Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
The announcement by President Jacob Zuma at the end of last week that he was extending the term of office of Chief Justice Sandile Ncgobo with another 5 years was generally welcomed by the legal community. Constitutional Court judges usually serve a non-renewable term of 12 years and justice Ngcobo’s 12 year term is coming to and end in September. Justice Ngcobo has only been Chief Justice for a relatively short period and it has been argued by my colleague Richard Calland, amongst others, that he needs time to oversee the completion of the judicial reforms that would ensure the long-term independence of the judiciary.
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.BACK TO TOP