A summary of this committee meeting is not yet available.
JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
14 September 2001
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL: HEARING
Chairperson: Adv J H de Lange
Documents Handed Out:
Submission by the Justice Chaskalson on Tenure of Constitutional Court Judges (Appendix 1)
Acting Chief Justice on the Tenure of Judges of the Constitutional Court (Appendix 2)
Letter from Judge B M Ngoepe (Appendix 3)
Judges of Cape Provincial Division of the High Court (Judge Hlope) Submission (Appendix 4)
UCT Law Faculty Discussion Document on Tenure of Judges of the Constitutional Court
Article from Mail & Guardian (Aug 17-23 2001) entitled "Viva Chaskalson Amendment"
Article from Mail & Guardian (Aug 24-30 2001) entitled "State to push ahead on judges"
Response to Mail & Guardian editorial by Christina Murray dated September 9-13 2001
Representations by the Advocates for Transformation endorsed by the Black Lawyers Association, Black Advocates Forum, National Association of Democratic Lawyers on Bill
Public hearings were held on the Constitutional Amendment Bill regarding the changing of the tenure of Constitutional Court judges. The Committee was addressed by the President of the Constitutional Court, Justice A Chaskalson and Justice J J Hefer, Acting Chief Justice of the Supreme Court of Appeal. Both the highly respected judges spoke in favour of the amendments with Justice Chaskalson speaking on behalf of the entire Constitutional Court. Justice Hefer said that a majority of judges from his division supported his views.
The rest of the presenters all spoke out against the amendments. These were Mr Francois Du Bois and Prof. Christina Murray, both senior law lecturers at the University of Cape Town, as well as representatives from Idasa. The thrust of the arguments opposing the amendments were all largely the same. They argued that the Constitutional Court was a special court with an increased degree of powers. Constitutional Court Judges were appointed through a different process with their term of service being provided for in the Constitution itself. They believed there was a need to include younger judges on the bench in order to achieve greater diversification.
Prof Murray elaborated on the purpose and effect of Clauses 9, 10 and 12 which would provide emergency relief mechanisms for local governments that were experiencing financial difficulties and also provide viable municipal councils with greater borrowing power. She also felt that the Amendment Bill needs to specify whether Deputy Ministers who were not MPs had the right to speak in the House.
IDASA believes it is important that judges have a specified term of office rather than life tenure in order to facilitate the movement of constitutional thought. The protection of tenure granted to judges by the Constitution would be lowered if the protection had to be taken out of the Constitution and placed in legislation.
Justice A Chaskalson, President of the Constitutional Court of South Africa
Justice Chaskalson noted that there were two important matters that needed to be dealt with before he started his presentation. Firstly, the amendment would affect him personally because, without it, he would have to retire this coming November. However, the matter should not be personalized and the Constitution should not be amended to accommodate an individual. The personalization of the matter was wrong and that the matter should be dealt with as a matter of principle.
Justice Chaskalson stated that he was before the Committee to argue in favour of the amendment as he believed the principle behind it was in the best interest of the judiciary. He was not before the Committee for his own benefit and was indeed prepared to retire in November if required to do so.
Adv de Lange told the judge that the Committee would not deal with the matter on a personalized basis and would instead deal with the principles embodied in the proposed amendments. It was a pity that certain newspapers had seen fit to personalize the matter when it was clearly not for the Committee to consider the matter is such a light.
Justice Chaskalson embarked on his presentation saying that the Constitution was the supreme law of the country and that all other law must therefore be consistent with it. The Constitution is to infuse all aspects of the law, and especially in the interpretation of statutes. The common law is also to be consistent with the Constitution and must in addition promote the principles enshrined in the Constitution. All courts were part of a unitary system, charged with the duty of applying the law uniformly and without favour.
In considering how tenure fitted into this framework, he said that tenure was a very important part of the judiciary as judges needed to have the financial and job security to ensure that they carried out their mandate properly. When handing down judgments, judges should have no fear as to the security of their positions. Security of tenure must never be seen to influence judgment.
Justice Chaskalson disagreed with the statement that a choice had been made when it was decided at its formation that the Constitutional Court would be a political court. Justice Chaskalson submitted that by saying that the Constitutional Court was a court outside the ordinary system, that it was a political court, had the effect of undermining the court’s position as the keystone of a single judiciary.
Justice Chaskalson asked whether by stating this, it was intended to project the impression that Constitutional Court judges were political judges who cannot have so-called life tenure. What implications would this position have for the long-term interests of the judiciary. He had seen this argument being forwarded in respect of the American and English jurisdictions. In these jurisdictions the apex courts often exercised powers similar to those exercised by the CC. Despite this fact these judges enjoyed full tenure. The arguments forwarded by those who protect this position is that these courts have the abovementioned jurisdiction plus the jurisdiction to hear other or additional matters. The judge added that the SCA also wielded considerable power while judges on this bench also enjoyed full tenure
Justice Chaskalson argued further that if the Constitutional Court was indeed a political court why had the Government not gotten rid of the entire Constitutional bench and appointed politicians with political affiliations instead of filling it with members of the legal fraternity.
He conceded that there were two arguments of substance, the legitimacy of which he accepted. The first was that amendments to the Constitution are always serious and never to be taken lightly. The second was that judges should not sit on the Constitutional Court for very long periods of time. Justice Chaskalson was however also of the opinion that the contrary arguments were stronger and that it was better for some judges to be on the CC for a long time, than for all judges to be subjected to the limited tenure that presently exists. However the final question in this respect was what would be in the best long-term interest of the judiciary.
The next major argument brought by those who oppose the amendments was that at the formulation of the Interim Constitution, at the negotiation phase it was agreed that Constitutional Court judges would have a tenure limited to twelve years. The opposition argue that this was the agreement arrived at and that this agreement cannot be changed. If this were true, the Constitution would be a rock-like institution that would have to always give effect to the intentions of the original parties to the agreement. This position was incorrect as we knew that the Constitution could be changed subject to the agreement thereto of a two-thirds majority. South Africa had decided to follow the continental system, but that this was an oversimplification of South Africa’s position at the time. He had the greatest respect for the Appellate Division, but necessity at the time called for a new court, borne of the Constitution. It was felt that this new court would undermine the Appellate Division so it was decided that there would be two courts at the apex. One court would be the highest court in matters constitutional and the other the highest court in all other matters. It was however also understood that this arrangement would not necessarily be permanent, with the tenure of Constitutional Court judges being one of the issues not set in stone.
The entire Interim Constitution was intended to be subject to reconsideration in arriving at the formulation of the Final Constitution. This would include the possible reconsideration of the continued existence of the Constitutional Court and therefore also the tenure of judges if the court were to remain. The Constitutional Court was an interim arrangement with some saying that it should be dissolved and its jurisdiction taken up by the Appellate Division. A more recent suggestion was the merging of the two benches.
The Supreme Court of Appeal had the power to rule on the constitutionality of legislation. Despite the fact that an order of unconstitutionality had to be confirmed by the CC, the scope of constitutional matters has been broadened. This in turn had the effect of bringing the CC into the rest of the judicial system which was now a single unitary judiciary. The judges appointed to the constitutional bench had the same background as judges appointed to the other benches. It was undesirable to distinguish judges in this manner.
He considered why the amendment had been suggested at that point in time. He asked what had changed within the judicial climate to necessitate or at least allow the change. He submitted that the system was ripe for such a change as the entire judiciary was poised for a major reconstruction. The CC would have a crucial role to play in the new structure and it thus needed to be incorporated into the judiciary at that moment because if it did not happen then, it might never happen. The question was ultimately whether or not the tenure of CC judges should be brought into line with that of other judges or not. This decision would ultimately be a political one to be taken by the Justice Portfolio Committee.
The thread that ran through all the objections was the fear that life tenure would result in the ossification of the CC’s opinion. The CC would be able to impose its will and dictate the ‘boni mores’/values of the day. The opposition also fear that judges will stagnate and lose touch with society, thus enforcing values and standards which have long grown outdated. Here Justice Chaskalson made the point that under our system of law, courts follow precedent and as a result, even in the event of a change in membership, the CC would still follow past precedents unless they were clearly wrong. This would mean that the changing of membership of the CC would not necessarily translate directly into a change in constitutional jurisprudence or attitude.
The question was not whether CC judges should have life tenure, but should these judges be placed on an equal footing with other judges. He felt that if the CC was treated as a political court, that is precisely what it would become. Conversely if treated as a normal court at the apex of a unitary judiciary, that is what it will become. He did not wish to drag the Court as an institution into the proceedings and had thus asked the members of the Court not to comment. However the entire Court had expressed its support for the amendment and the principle it embodied.
Adv de Lange said he appreciated the fact that the entire CC supported the amendments but added that when passing an amendment such as this, one would obviously want a high degree of consensus. A major problem lay in the fact that there was no consensus in South Africa and instead there was a general air of disagreement. The amendment would have to attract a two-thirds majority before it had any legal force. As a result the Committee would appreciate input from the CC on the viability or the value in proceeding with such a Bill in light of the vigorous opposition.
Justice Chaskalson said that he appreciated the position in which the Committee found itself but added that ultimately these were political decisions that could properly only be made by the Committee itself.
Ms S Camerer (NNP) recalled a statement made by Justice Chaskalson in the past that the CC and the SCA should be kept apart. She asked if the judge had changed his mind, and if so why.
Justice Chaskalson said that he had indeed in the past argued for the continued separation of the two courts. His position at that time was based on the fact that the CC was not ready to deal with the subject matter. At that point, the SCA was better able to deal with matters falling into its jurisdiction and the constitutional jurisdiction. Essentially it was an issue of timing.
Adv de Lange noted that CC judges received gratuity which was more substantial than the gratuities received by judges which the CC judges sought to placed on par with. If the position of CC judges were changed, would the gratuity payable to CC judges be changed as well.
Justice Chaskalson said that the matter was not about money but one of principle. None of the judges on the CC bench were there for the money. If the CC judges were placed on par with other judges, it was a given that the gratuity given to CC judges on retirement would be done away with. The gratuity payable will be calculated in the same manner as those given to other judges.
Dr J Delport (DDP) asked if what they were witnessing was the evolution of the CC. Initially the CC had been placed in certain perspective where it was intended to give effect to a transition into a new dispensation. Now that this process has tended towards completion, so too the CC is shifting its position and being integrated into the existing judiciary to a greater degree.
Justice Chaskalson said that this translation of the proceedings and their intentions was correct.
Ms F Chohan-Kota (ANC) said that it was an oversimplification that the CC was not a political court but a normal one. The CC has a peculiar function within the framework of the Constitution. Furthermore, the court wields a great deal of power as it is the final voice on all matters constitutional. Given this delicacy it is easy to see why a limited term was opted for. South Africa was a very young democracy still undergoing the transition phase. She suggested that it would be wise to let the status quo stay as it is for a while so that the constitutional culture and jurisprudence could develop a little further.
Ms Chohan-Kota posed a question saying that it was a desirable trait of the CC that it had on the bench a number of relatively young members. It would seem that life tenure would motivate against the appointment of younger people to the Constitutional bench, a consequence that would greatly undermine the representivity of the court.
Justice Chaskalson replied that younger individuals had indeed made very valuable contributions to the CC bench, but added that he personally felt that coming to the CC at too young an age was not a good thing. The CC was a demanding job that required a degree of experience that could only be attained with age. One or two young people on the CC bench was indeed not a bad thing. The young individuals presently on the bench were there as a consequence of the times. It was not necessarily a bad thing that certain people sit on the bench for an extended period of time. These people would gain a great deal of experience that would constitute a valuable asset, especially in times when the jurisprudence is still in its infancy.
Mr L Landers (ANC) asked what had changed since the Interim Constitution to at least justify the change.
Justice Chaskalson replied that what had changed was that the CC had established itself, built up an international reputation and created a wealthy body of South African Constitutional jurisprudence. Furthermore, the CC has established itself in the eyes of the rest of the judiciary as a credible court.
Mr S Swart (ACDP) commented that the lack of skills on the Constitutional bench which Justice Chaskalson said would come as a result of the present position could be supplemented through the framework provided by the principle of following precedents. Adv de Lange noted that other jurisdictions, also going through transitions, had also opted for fixed terms.
Justice Chaskalson conceded that South Africa was still going through a transition, but it remained that the CC, and indeed the South African democracy, had made great strides. The CC had also aged well and was more than ready to undergo incorporation into the judiciary.
Chief Justice of the Supreme Court of Appeal (SCA)
Justice J J Hefer agreed that there was indeed a substantial body of opposition to the bill. Despite this, the Committee would need to consider the matter objectively, and if it found the amendment to be in the best interest of the South African judiciary, the Committee would have to pass the Bill despite the opposition.
Adv de Lange appreciated the need for objective consideration but said that he would like to minimize opposition as he would really prefer for there to be more consensus than disagreement. It would be important for there to be consensus and a degree of unity on the matter.
Justice Hefer said that it was for this reason that it was a pity that the matter had been personalized. What was being discussed here was not the tenure and pension rights of certain CC judges, but a principled look at what would be best for the South African judiciary.
Justice Hefer argued that the CC has a great degree of power but no political power. The decisions of the CC do have political effect, but strictly speaking have no political power. He made reference to the Harris case in 1952, an important part of South African history, which concerned an attempt by the Government of the time to provide for a separate voters roll for non-whites. The relevant legislation was ruled to be contrary to the Republic of South Africa Act by the Appeal Court. As contentious as this decision was at the time, nobody claimed that the Appeal Court wielded political power. Justice Hefer said that the point he was trying to make here was that no court can or should wield political power.
In his own experience, the SCA was quickly moving to a position from which it considered constitutional questions in an identical manner applied in the CC. Despite this, it is still a welcome feature that there is a court of appeal in constitutional matters. SCA judges wield the same power as CC judges, but subject to appeal - yet they enjoy different tenures. Justice Hefer said that the political power argument could not mitigate in favour of those opposing the amendments.
As to the argument that the members of the CC should change from time to time, Justice Hefer said that he could not see the reason for this. The opposition argue that life tenure for CC judges would result in the entrenchment of that bench’s view for an entire generation. Justice Hefer said that if stagnation or the ossification of a certain view were to result, it would be as a result of the doctrine of precedence. A regular changing of the composition of the CC would not result in the regular changing of constitutional thinking. The opposite was indeed true, namely that the lengthy tenure of CC judges would result in the maintenance of the systematic development of jurisprudence that the CC has painstakingly developed over the past.
Justice Hefer noted that his youngest colleague on the SCA bench was currently 47 years old and was destined to sit on that bench for at least 27 more years. He said that if the situation around young judges worked in the SCA, following from his other arguments, it should work in the CC.
When the Interim Constitution was negotiated it was indeed appreciated that the CC would function outside the usual court system. Justice Hefer said further that the CC was a special court but not one outside the judicial system. Also the position of the CC was an interim arrangement which could be changed.
Ms Camerer reminded the learned judge that he had said that if South Africa moved towards a unitary system the CC should not be positioned outside the rest of the judiciary. She told the learned judge that when the Committee went to Germany they had witnessed a jurisdiction which prided itself on the fact that it had a unitary system of courts. Despite this however the German Constitutional Division is still quite separate to the rest of the system. She said that here the separation came as a consequence of the enormous power which that bench was perceived to wield.
Justice Hefer told the Committee that in the present context it was dangerous to apply a comparative analysis. Essentially what was being sought was a CC bench comprised of the same type of judges as other courts with the same tenures as other judges. Justice Hefer said that all the arguments against so called life tenure did not necessitate that these could not be a single judiciary with due regard given to the status of the CC and its bench.
Ms Camerer reminded the judge that he had said that the present tenure of judges lent itself more readily to manipulation than a life tenure situation would. She asked how he came to this conclusion.
Justice Hefer said that with limited tenures, politicians knew that they only needed to wait twelve years for a CC judge to be replaced. With life tenure, the judges have security of tenure and can thus hand down judgments without fear of reprisal. Their judgments are however tempered by the views of their colleagues and other bodies. As it stands, when judges near the end of their terms, they might temper their judgments to attract favour from individuals or institutions that they could seek employment from after their retirement from the CC bench.
Dr Delport asked the same question he had to put to the honorable Justice Chaskalson. He enquired whether what was being witnessed was the evolution of the CC, and if so was the South African judiciary ready for that transition.
Justice Hefer replied that the judiciary had not completely undergone its transformation, but this did not mean that they could not act. The CC had made amazing strides and proven itself.
Justice Hefer concluded his own representations by saying that consensus would not be possible as there were two opposing views on the matter. Justice Chaskalson told the Committee that perhaps political consensus was the most important form of consensus to be gained. This concluded the representations which spoke in favour of the amendments.
University of Cape Town Law Faculty: Mr Du Bois
Mr Du Bois said there were a number of basic questions. These were whether the tenure on the CC should be regulated by legislation and whether the tenure on the CC should be identical to tenure on the other superior courts. Mr Du Bois answered no to both these questions, saying that the limited tenure should stay and that it would not be wise to provide for the tenure of CC judges in legislation.
In the arguments against the amendments there was a single thread. Namely that the CC was a special court with special powers and a unique status. He was not arguing that the CC was a separate court outside the system or that it was a political court. However the CC was a special court unique in three ways:
- The CC enjoyed exclusive powers. One of these was to rule on the validity of legislation. It was true that other courts also had this power, but the CC was the court of final instance in these matters.
- The CC was unique in that it had special procedures for the appointment of its judges.
- There were special features of tenure regulated in the Constitution itself.
Mr Du Bois said that these premises were not only mutually compatible but also mutually supportive. To remove one of these ‘legs’ would upset a delicate balance and result in an anomaly.
Looking at the possibility of identical tenure of CC judges, he said there is a difference between security of tenure in a court and tenure in the wider sense. It was possible for judges to move from one bench to another as had been done in the past. There were five arguments forwarded in favour of the removal of the fixed term. These were equity, the future location of the Chief Justice, the move to a unitary court structure, continuity and the need to attract the best legal minds to the CC bench. Each of these was a valid point but they in fact did not operate in favour of the amendments at all. Furthermore, these objectives could be achieved through other means and certainly without a constitutional amendment.
Mr Du Bois said that the benefit of having a constitutionally entrenched fixed term of service for CC judges is that it means no individual or group of judges can perpetuate their views. It also meant that the composition of the court would not affect the position on matters. The fixed term ensures a healthy relationship between the judiciary and the legislature. It ensures that no individual judge can rise to a position of leadership to the degree that his or her view represents the view of the entire court.
Dr Delport said that the thrust of Mr Du Bois’ argument was that life term would result in stagnation and that the fixed term prevents the stagnation of a non-elected judiciary and counter-balances the power exercised by the CC. He asked if the rapid replacement of the bench would not compromise the continuity needed for the CC to properly perform its function.
Mr Du Bois said that he was not in favour of a sudden change but that a gradual change would be compatible with the prevention of stagnation in the CC. A gradual change would also provide for the balance between stability/continuity and the prevention of stagnation on the CC. Experience in the United States had shown that judges who sit for a long time grow increasingly hard to work with. He said these individuals also grow out of touch with society. The difference between tenure on one bench and tenure as a whole needed to be remembered. In addition to this he maintained that if special procedures were applied in appointing these individuals, surely unique provisions relating to tenure should also remain.
Adv de Lange commented that various solutions had been suggested. One of these was the removal of disparities in respect of retirement age and remuneration. He asked Mr Du Bois’ feelings on the possible removal of these disparities subject to the retention of the fixed tenure period.
Mr Du Bois stated that he would not be opposed to such a solution.
University of Cape Town Law Faculty: Prof Christina Murray
Prof. Murray stated that she had not prepared a formal submission but would talk on the key issues. She did not see the importance of moving the tenure to legislation outside of the Constitution. The need for change is the result of an evolutionary process and she was interested to note from the questions that had been raised earlier in the hearing that this may be the first step towards a merged Constitutional and Supreme Court. Few people understand what a unified judiciary would mean for South Africa. She suggested that the magistrates and judges would continue to have their independence protected but in other respects would be similar. She supported the need for having a different tenure for judges.
Prof. Murray felt that the issue of appointing young people to Court was the subject of some controversy – the critics being their off-the-bench colleagues. This was the situation especially in Europe. It must be accepted that there would be some resistance but South Africa should not look to other countries for an answer. It is important to have a diversified Constitutional Court and this was in turn an important argument for a fixed tenure. In Canada, the appointment of more women to the courts had also resulted in the appointment of younger judges and this had led to the amendment of the retirement ages of judges.
Prof. Murray commented on the clauses relating to local government financial matters. The underlying principle was to develop sustainable local government. The framework provided by the Constitution had proved inadequate as it did not cater for local governments that were in distress or for those who were viable but did not have the borrowing power envisaged in s230. In relation to borrowing, the issue seemed to be that to be able to borrow, local governments must be able to offer some security. Two amendments in the first Amendment Bill and one in the Second Amendment Bill attempt to deal with this. Clause 12 provides mechanisms to deal with financial emergencies. Another provision, known as a "fettering provision", allows municipal councils to bind themselves for years to come. A tension was created when municipal councils need to borrow but require security to do so. The problem encountered in the local government situation is that municipal councils, in order to obtain security, have to agree to keep their rates fixed for a period of time, thereby binding their successors and fettering local government. Technically an amendment was required to permit that sort of fettering and that could be found in Clause 10 of the Amendment Bill. Clause 9 relates to financial emergencies and is related to the issue of borrowing. Just as municipal councils need to provide security so investors need to be certain that should insolvency occur some sort of bankruptcy proceedings will be in place. Many municipalities under the old system were financially unstable and often entered into financial crises.
The Chair enquired why s139 was not effective.
Prof. Murray replied that the primary reason was that political effects make it difficult to use and because of problems of capacity across government. New legislation would allow local governments to go further than s139.
The Chair asked if it would be good for creditor to declare local governments insolvent.
Prof. Murray answered that there were some problems with the provision as it is drafted at the moment. It requires more detail and some independent body attached to it. Adding the criteria in the Constitution and the detail in the legislation could solve the problem.
The Chair asked if this were to be done, would it be desirable to declare local governments insolvent.
Prof. Murray responded that it would depend on what insolvency would mean it terms of local government. It would not be the usual meaning but rather more in the sense of recovery plans, which were quite different from normal insolvency proceedings.
The Chair suggested that insolvency might mean stopping municipal councils from creating further debts, however they would have to wait for the briefings. He asked if Prof. Murray had any further comments.
Prof. Murray commented on the issue of Deputy Ministers. She was puzzled about the amendment. Although she felt that there must be a reason behind it, she felt it was unclear what such a Deputy Minister who was not an MP would be. At present MPs are elected but this was not in the amendment. Section 54 of the Constitution gives MPs the right to speak in the House, however the amendment is silent on this.
Ms S Camerer (NNP) raised two concerns regarding the Deputy Ministers. Firstly, appointing Ministers who were not MPs was done rarely and very specifically such as if a finance expert was required. It appeared that if this were to be done on a lower level as well that it would have a negative impact on democracy. Secondly, would the appointments disrupt the democratic process?
Mr J Jeffrey (ANC) asked if there was any reason why the term "Cabinet" could not be widened to include Deputy Ministers.
The Chair asked Prof. Murray’s opinion on the hypothetical scenario posed earlier where everything regarding tenure of judges was brought in line with everything else.
Prof. Murray answered Ms Camerer’s question by saying that previously people thought in terms of expertise but now there was more of a political need. It could not be said that someone with a particular expertise is more important than someone from a particular party. She did not see why Deputy Ministers were mentioned in the Constitution at all but felt that there was a need to state whether they may speak in the House and what on.
The Chair stated that they do not have general speaking rights. They speak on their portfolios.
Mr Jeffrey said that they speak in place of Ministers or in their party time. Although Ministers did have Acting Ministers to take their place in parliament, Deputy Ministers were often in a better position to speak. He wondered whether s91 should be amended to include Deputy Ministers.
Prof. Murray cautioned that the roles of Deputy Ministers should not be over-constitutionalised. The question should be answered not at constitutional level but as a matter of parliamentary process. On the issue of including Deputy Ministers in Parliament, she felt that you could expand the Cabinet by doing so but that there was no apparent need to do so. Regarding the Chair’s question, she felt that there should be a set tenure for everybody and a good idea would be to incorporate it in the Constitution. The terms of office for judges on the Constitutional Court should be the same but this was not necessary for judges from other courts.
The Chair suggested that you could have a fixed term or set according to national legislation.
Prof. Murray felt that it would be better to have it made clear; one could have a "maximum term" but that 70 as opposed to 75 was anomalous.
Mr Thabani Masuka said that it was IDASA’s understanding that the amendments seek to give to Parliament the power to decide on the tenure of the Constitutional Court judges. A certain apprehension was felt because no adequate reasons were being given as to why the current constitutional framework is unsatisfactory. There is no indication that it hinders the Constitutional Court in its functions.
IDASA’s two primary concerns were the objectives and the impact of the amendments. It was felt that the objective should be to assist the court and therefore it must first be shown that the current framework is a hindrance to the operating of the court. In terms of s165(4) Parliament must take measures to achieve the objectives mentioned in s165(4). However, Parliament must also take into account s165(3) which states that no person or organ of state may interfere with the functioning of the courts. Parliament may therefore not make any amendments if they lower the protection given to Constitutional Court judges. A further argument is that s176(1) grants a weak tenure to the Constitutional Court judges and once the amendment is passed the tenure will be much lower in terms of how it protects the judges.
In answer to the Chair asking why, Mr Masuka replied that the process involved in changing legislation is easier than changing the Constitution.
The Chair responded that the argument put forward by Judge Chaskalson was that any legislation can be challenged by the courts themselves. Therefore the very people you were asking to leave would be making the decision.
Mr Masuka argued that the current situation ensures that there is no interference from Parliament except by amending the Constitution, which requires a high degree of support. If the issue of tenure were relegated to an Act of Parliament it would be different because that would result in a weaker protection than is currently being enjoyed. The current protection is the ultimate protection. IDASA also felt that there was no crisis being faced by the judiciary but even if there were, s165(4) allows for the intervention of Parliament or a Minister to ensure that the judiciary works effectively. The independence of the judiciary is important. The old parliament was not slow to control the judiciary. In conclusion, he felt that the amendment lowers the protection afforded to judges.
Mr J Jeffrey (ANC) raised several points:
- He questioned the possibility and feasibility of Idasa’s suggestion of Parliament interfering with the court should the Constitutional Court hand down a judgment that was unpopular with the ruling party.
- Referring to the political nature of judges in the United States, mentioned in the submission, he queried whether the situation was not different here in South Africa where the judges were appointed by the Judicial Services Commission and not the president.
- He questioned IDASA suggestion that younger judges were insecure and that their judgments on matters relating to Public Services might be tempered, bearing in mind that they may later on be looking for a job with Public Services.
- The submission mentioned the apparent haste with which the Amendment Bills were going through Parliament. However he said procedure was being followed. He suggested the possibility that IDASA was being unduly alarmist.
Ms S Camerer (NNP) questioned the desirability of Constitutional Court judges have "another life" after serving their term of office. One could not de-link that from issues of pensions and making a living. She wondered what was being done in other countries.
Ms F Chohan-Kota (ANC) referred back to IDASA’s submission that the amendments would offend s165(3) – that of non-intervention – and that the amendments would weaken the protection given to the judiciary. However, she felt that the purpose of the legislation was being ignored – it would be creating a term of office that would continue for the duration of the judge’s life thereby making their position more secure than ever. Also, it had briefly been mentioned that the amendment would privilege those judges that had already served but a reason for this had not been given.
The Chair asked what IDASA’s views were on the hypothetical situation where all the aspects of the judiciary were brought in line with each other but the terms for the Constitutional Court judges were retained.
Mr Masuka answered Mr Jeffrey’s question by saying that IDASA was not being unduly alarmist. The current situation is that judges enjoy a high degree of protection. If the protection is taken out of the Constitution and put into legislation, other opportunities for interference will be created. The intention should be to enhance the protection currently enjoyed, not weaken it.
Ms Judith February (Idasa) added that giving Constitutional Court judges life tenure would be creating a further problem because it would lead to a lack of movement of constitutional thought. In a way it would not be possible to get rid of judges and this would not be healthy for the court.
Mr Masuka continued that young judges were concerned about what the future would hold for them after they had served their term and this would bother the judges. It was his understanding that s165(4) could be used to increase their terms of office. It was also clear that after the Constitutional Court, judges would have no problem doing other things – they could go on to play a fundamental role in other sectors.
He agreed with Mr Jeffrey that the Judicial Services Commission plays a good role in ensuring the credibility and integrity of judges appointed to the bench and that one would not want the US situation.
Mr Masuka’s last point was that the tenure of judges should remain within the Constitution and not be removed.
Judge President of the Constitutional Court of South Africa
Tenure of the Judges of the Constitutional Court
1. The European Constitutional Courts find their place in a civil law system in which there is a career judiciary. Their judges are usually not part of the career judiciary and are appointed for fixed periods of time. Though there are differences between the various countries, the majority of constitutional judges are drawn from the academy and the political sector. For instance the past President of the French Constitutional Court was previously the Minister of Foreign Affairs. His predecessor was Minister of Justice and after completing his term on the Constitutional Court, became President of the Senate. The President of the German Constitutional Court was formerly Minister of Justice of one of the states; her predecessor had been an academic, a minister in a state cabinet, and later became President of the Federal Republic of Germany. A former President of the Italian Constitutional Court, Mr La Pergola, was also an academic, a minister in the Italian government, a member of the European Parliament and is now a judge of the European Court at Luxembourg.
2. In SA the Constitutional Court [the CC] finds its place within a common law system which has a professional and not a career judiciary. The CC functions in the same way as other courts do and as part of an integrated court system. Its jurisdiction and place in the court structure is closer to the common law supreme courts such as the US Supreme Court and the Canadian Supreme Court than to the Constitutional Courts of Europe. From enquiries that I have made I understand that the great bulk of the work of the Canadian Supreme Court falls within the jurisdiction of the CC. The CC hears appeals from other Courts including the SCA and has jurisdiction in respect of private law disputes as well as public law disputes. In the structure that is contemplated the CC and the SCA will in effect be at the apex of a single court system in which there will be a single judiciary. The Chief Justice and the Deputy Chief Justice will sit in the Constitutional Court. It would be strange if the tenure of the head of the judiciary is weaker than the tenure of the judges of the SCA and the High Court.
3. At present five of the judges of the Constitutional Court have full tenure and six of the judges do not. That is attributable to the transition and the appointment directly to the Court of persons who had not held judicial office under apartheid. This should change over the years, as appointments are likely to be made to the Court form within the judiciary. If this happens all judges will have tenure. In the meantime, however, this disparity exists.
4. The present arrangements concerning tenure is incongruous for various reasons.
(a) Tenure is an aspect of the independence of the judiciary. Judges of the CC who do not have full tenure may be perceived to have less independence than judges of other courts who have full tenure. Should they be concerned about their future when they give their judgements?
Obviously not, but what might the perceptions be, particularly if on retirement they go into government service, or work for litigants who have had important cases before the CC? The need to seek employment after retirement is undesirable, and the distinction in this regard between them and other judges, is out of place in a single judiciary.
(b) Some of the judges of the CC have full tenure and others do not. Those who have full tenure have occupational and pension rights that are move favourable than those of their colleagues who do not have full tenure.
(c) Those who have tenure but whose terms on the CC come to an end after 12 years will in effect be demoted at that time and will have to return to a position in the High Court. This is undesirable, puts them in an invidious position and at a disadvantage in comparison with the judges of the SCA, who retain their position in that Court with the status, salary and other benefits attaching to it until they reach retiring age.
(d) Those who do not have tenure and full pension rights will have to seek employment after their term expires. It is undesirable that they should return to the legal profession or that they should enter government service or business, which leaves them with comparatively narrow options.
(e) It is undesirable that the best candidates should be deterred by the conditions of appointment from making themselves available for appointment to the CC.
5. There is a possibility that judges of the CC will hold office for long periods of time. That is also true also of judges of the SCA and the High Court and is in part due to the transition to democracy taking place at a time when there is an imbalance of race and gender in the legal profession and the judiciary as a result of our history.
6. There are, however, many examples of long periods of service as a judge in common law countries at other times. For instance, Chief Justice Marshall, who famously declared the US Constitution to be the supreme law, served as Chief Justice of the USA for 34 Years; Lord Denning served as a judge in England for 38 years during which he Was Master of the Rolls for 20 years; In South Africa Chief Justice Innes was a judge for 25 years of which 18 years were served on the Appellate Division; Chief Justice Rumpff was a judge for 28 years of which 20 years were served on the Appellate Division; Chief Justice Corbett was a judge for 33 years of which 22 years were served on the Appellate Division.
6, The concern expressed about the possibility of long periods of service on the CC must be weighed against the need for the new Court to establish itself and gain the confidence and respect of the community and the profession. Stability
and continuity is important. Also important is the preservation of skills that are still comparatively scarce Particularly during the transitional period through which we are passing. The older judges of the CC are presently the white male judges. Three of them are likely to retire within three years even if the tenure provisions are changed. Those most affected by the term provisions will be the four black male judges and the two judges who are women. All of them will be lost to the Court prematurely if they have to leave the Court after 12 years service. And what is more, all will go at the same time.
7. If it is considered undesirable that a judge should sit on the CC for more than
15-20 years this can be taken into account when appointments are made. Although this would not necessarily be desirable, there could even be a provision fixing a minimum age for appointment to the CC, or a provision that CC judges who have not yet reached retiring age be released from active service after 15 or 20 years on the CC. This could be dealt with in the Judges Remuneration and Conditions of Employment Act and need not impede the constitutional amendment required to extend the period of service of CC judges. The fairest and the most defensible provision is, however, to treat all judges equally. If the CC judges have the same conditions of tenure and pension rights as the other judges do, equality will be achieved, and no suggestion can be made that CC judges are being preferred or discriminated against. That would best serve the standing of the court and its integrity as an institution.
8. The Bill of Rights lies at the heart of our new legal order. It is and must continue to be central to all aspects of our law. And all law has to be shaped consistently with its provisions. The Constitutional Court has a crucial role to play in this. It should be, and be seen to be, an integral part of the court system and not apart or on its periphery. Its judges should be, and be seen to be, part of a single judiciary, and not a breed apart, subject to weaker conditions of tenure and less favourable terms of employment than other judges are.
9 This is the position occupied by judges who exercise constitutional jurisdiction or enforce bills of rights in the highest courts of "common law" countries such as the United Kingdom, the other countries of the Commonwealth and the United States of America, whose legal Systems are similar to ours. In those "common law" countries whose judges have power equivalent to that of the judges of our Constitutional Court, I am not aware of any distinction made between the tenure of judges of the highest courts that shape the law and judges of the lower courts who are bound by their decisions.
10. At one time there was a proposal that the CC and the SCA should be merged. Serious consideration was given to that possibility but ultimately it was rejected, If merger had taken place it would have been unthinkable for some of the judges of the merged Court to have full tenure and others not. It is not clear why, in a single judiciary, that distinction should be maintained simply because the courts were not merged.
11. Stability, continuity and coherence ate of signal importance to the development of the law. They are of particular importance now as the new legal order is being established. In common law countries, law, once established, changes incrementally. Precedent is important and given greater weight than is the case in the civil law continental countries, where there are career judiciaries. There, most constitutional courts function apart from the ordinary courts. In Austria, which is the oldest constitutional court in Europe, judges have full tenure serving until the end of the year in which they turn 70. In most of the constitutional countries, however, constitutional judges are appointed for fixed terms, They are not part of career judiciaries but are drawn from the academic and political sectors to which they return after completing their terms. I have given examples of career paths of continental constitutional judges whom l have met and spoken to. This is not the career path of South African judges.
12. The jurisdiction of the CC and its place in the court structure, though different in some respects, is close to the position of the Supreme Courts in common law countries in which the constitution is the supreme law, or there is a bill of rights. It is an apex court of a single judiciary. In the United States Supreme Court Judges are appointed for life. This is undesirable for there is no retiring age and it is left to the judges themselves to decide when to retire. In the Commonwealth the retirement age of judges varies from country to country -from 65 in India to 75 in Canada.
13. In SA the retiring age of judges is 70. In the case of judges who have had less than 15 years service when they reach 70, there is an entitlement to continue in office until the completion of 15 years service, but not beyond the age of 75. In the rhetoric about "life tenure" this should be made clear, for the public think that "life" means "life". What is in issue is not the age at which judges in South Africa should retire; it is, whether CC judges should be treated differently to other judges, or whether all judges should have the same tenure and conditions of service.
31 August 2001
PRESENTATION BY ACTING CHIEF JUSTICE ON THE TENURE OF JUDGES OF THE CONSTITUTIONAL COURT.
1. I have read the memorandum prepared by the President of the Constitutional Court. I subscribe to the contentions therein and wish to make the additional points which follow.
2. The objection to the proposed amendment flows largely from the misconception that the Constitutional Court wields political power.
(a) The role of the courts in a constitutional state is well known. Their primary function is to ensure that the exercise of legislative, executive and administrative power by other organs of state comply with constitutional norms.
(b) Certain judgements of the courts may obviously affect the politics of the day to the extent that the exercise of legislative, executive or administrative power which is found to be unconstitutional in particular cases may be set aside or prevented. But to suggest that the
courts themselves wield political power is to deny one of the essential elements of a constitutional state.
(c) To demonstrate the point it is useful to cast one's mind back to 1952 when the Appeal Court in the Harris case declared an amendment of the South Africa Act unconstitutional and accordingly invalid. (The decision followed upon an attempt by Dr Malan's government to create separate voters rolls without complying with the so-called entrenched clauses of the South Africa Act. The court found that this could not validly be done and declared an Act of Parliament invalid for want of compliance with constitutionally prescribed procedures.) The judgement had far reaching political repercussions but no one suggested at the time that the judges of the Appeal Court passed judgement in the exercise of political power. On the contrary, the judgement served to demonstrate how the exercise of judicial power can, in suitable cases, invalidate an abuse of political power by another organ of state.
(d) Nowadays judicial review is much more extensive. It is no longer limited to the power to adjudicate upon the procedural constitutional validity of legislation. But the power remains essentially the same.
3. The Constitution has conferred this power, not only on the Constitutional Court, but upon the High Courts and the Supreme Court of Appeal as well.
(a) The Constitutional Court is by no means unique. It performs its functions precisely like the other courts exercising constitutional jurisdiction. The only distinction is that the Constitutional Court is the highest court in constitutional matters.
(b) This reveals the incongruity of the present position: judges of lower courts exercising constitutional jurisdiction enjoy tenure of office whilst judges of the highest court in that field do not.
4. There are those who argue that constitutional judges must be replaced at regular intervals.
(a) The reasons why constitutional judges should be replaced from time to time are not clear. But whatever they are, it is quite plain that a system of regular replacement of the members of the highest court exercising constitutional jurisdiction lends itself to political manipulation. (Imagine what the consequences might have been if at the time of the Harris case, there had been a court whose members could have been replaced in a few years' time.) Of course, one does not assume a government who is not averse to manipulation; but a constitution should be sufficiently strong to withstand the ploys of unscrupulous politicians.
(b) In any event, the argument loses sight of the fact that judges of the other courts which also exercise constitutional jurisdiction often spend twenty years and longer on the bench. The fact of the matter is simply that long service on the bench has always been regarded as an asset rather than a disqualification.
(c) It is stated in the memorandum submitted by certain Johannesburg and Pretoria judges that "when the constitution was negotiated, it was also appreciated that the Constitutional Court would not function as part of the ordinary court system." I respectfully join issue with the judges because there is nothing in the Constitution to justify their claim and we know that the limitation on the term of office of constitutional judges was the result of a political settlement. (Some of the negotiators wanted them to have full tenure of office and there were those who wanted them to be changed with every change of government. In the end a middle course was adopted.) I accept that there is a perception in some quarters that the Constitutional Court does not function as an ordinary court; and I also accept that in some respects the court is indeed different. But that still does not justify the statement. It is high time that the perception that the Constitutional Court does not function as part of the ordinary system be dispelled. The general consensus at the Centurion colloquium was that there should be an integrated court system of which all the courts form part. That was also the consensus at the meeting between the Minister and the heads of courts on 2 April 2001; and that is also the direction which the Task Team is following.
5. Another argument is that nothing has occurred since 1996 which justifies a change.
I strongly support the view that constitutional changes should not be made lightly but the Constitution should plainly not be regarded as a rigid document which brooks of no amendment irrespective of its need. We must bear in mind that the provision of the Constitution limiting the term of office of constitutional judges was the result of a compromise. I firmly believe that it was a mistake.
6. The perception that the proposed amendment is aimed at preserving the position of the President of the Constitutional Court upon his retirement later this year is entirely wrong.
Tenure of office of constitutional judges was not discussed at the colloquium in Centurion during October 2000. The idea that constitutional judges should have full tenure of office like all other judges originated at a meeting between certain judges of the Supreme Court of Appeal and of the Constitutional Court on 30 March 2001 which had been convened to explore the possibility of reaching agreement on the position of the Chief Justices and the question whether the jurisdiction of the Constitutional Court should be extended. The point that there should be parity among all judges as far as retirement is concerned (particularly if the Chief Justiceship were to attach to the Constitutional Court) was raised by a member of the Supreme Court of Appeal. This became the consensus of the meeting which was conveyed, first to the heads of court on the evening of 1 April 2001 and later to the Minister on 2 April 2001. From there the question of tenure was taken forward by the Task Team nominated on 2 April.
(c) It must accordingly be well understood that the proposed amendment has nothing to do with judge Chaskalson's personal position. It concerns the Constitutional Court as an institution and not any of its present members.
6. FINALLY: I must disclose in fairness that all my colleagues on the Bench of the Supreme Court of Appeal do not share the views which I have expressed. Some of them feel that the status quo should be retained.
Acting Chief Justice
14 SEPTEMBER 2001
OFFICE OF THE JUDGE PRESIDENT
HIGH COURT OF SOUTH AFRICA
11 September 2001
To: Advocate Johnny de Lange, MP : Chairperson of the Parliamentary Committee on Justice and Constitutional Development
From: B M Ngoepe, Judge President : Transvaal Provincial Division
I refer to the telephonic discussion we had last Friday.
We will not avail ourselves of the opportunity to make oral representations. However, to assist the Committee, I provide the following key to enable the Honourable members understand our memorandum.
1. In the past, Parliament enjoyed sovereignty; that is, no court of law could inquire into the validity of an Act of Parliament.
2. With the new South Africa, we established a constitutional state; that is, Parliament lost its Constitutional sovereignty to the Constitution and the Constitutional Court as the ultimate enforcer of the Constitution. The 11 Constitutional Court Judges have the power to set aside an Act of parliament (passed by people elected on a popular vote); they can set aside the will of Parliament.
Unlike other judges, they enjoy this special power, with their decisions being final.
3. With the Constitutional Court now enjoying this sovereignty, the real question is whether such a Judge should be vested with that power for life (with some of the judges it would be for decades). In a democratic society, especially a young one, one would have thought that the answer was obvious. It is the answer which the nation gave right from the beginning.
MEMORANDUM BY THE JUDGES OF THE CAPE PROVINCIAL DIVISION OF THE HIGH COURT: PROPOSED AMENDMENT OF THE CONSTITUTION REGARDING TENURE OF THE JUDGES OF THE CONSTITUTIONAL
1. The proposed amendment that judges of the Constitutional Court be placed on the same footing as their counterparts in the Supreme Court of Appeal and High Courts destroys a fundamental principle which had been agreed upon during the course of the constitutional negotiations and which gave rise initially to the provision of a non-renewable term of seven years for judges of the Constitutional Court in the interim Constitution 2000 of 1993, and thereafter to section 176(1) of the Constitution which provides that the judges of the Constitutional Court be appointed for a non-renewable term of twelve years but must retire at the age of seventy(70).
The idea behind section 176 was that the Constitutional Court was a different institution. Given its constitutional power of review, this court is, arguably, the most powerful institution in the country, capable of setting aside the legislative output of a democratically elected parliament. In agreeing to the principle of a non-renewable term of 12 years, the Constitutional Assembly followed the precedent adopted in the Federal Constitutional Court of Germany where the judges enjoy a non-renewable term of twelve years, which is further limited by a mandatory retirement at the age sixty-eight (68). It should be noted that Germany is not the only Constitutional Court where judges enjoy a non-renewable term. Similar provisions apply in France, Italy, Spain, Portugal, Hungary and the Czech Republic (see in general Vicki Jackson and Mark Tushnet Comparative Constitutional Law (2000) at 590 –591).
1.2 The proposed amendment fails to recognise the essential difference between the functions of the High Court (and Supreme Court of Appeal) and that of the Constitutional jurisdiction to all courts it is, in effect, only the Constitutional Court that can set aside the national legislation or decide that parliament or the President has failed to fulfil a constitutional obligation. Because of these wide powers of constitutional review, the appointment of judges to the Constitutional Court will inevitably be more politically contested than that of appointment to any other court. For this reason, appointments to Constitutional Courts are Generally subject to greater political controversy than is the case with appointments to other courts. By providing tenure to Constitutional Court judges, it is far more likely that political issues will be made more important in the appointment process that in the case at present. The precedent of appointments to the United States Supreme Court amply supports this submission. By following the approach, the Bill will encourage the appointment of candidates who the ruling party considers to represent ‘safe pairs of hands’. It will discourage the appointment of younger candidates who might otherwise sit on the court for between twenty to thirty years by which time they could well be out of touch with the mores of society. This will force up the age of appointments and in the short term this may well work against the demographic transformation of that court.
2. The major arguments in favour of the amendment are: 2.1 Continuity of the court’s jurisprudence and 2.2 The inapplicability of the continental model to our system.
2.1 The proponents of the amendment argue that, unless the members of the court are given life tenure, the continuity and stability of the court will be jeopardised. The short and the complete answer to this argument is that not all the present members of the court retire at the same time. A majority will remain for another five years and in at least two cases for longer. The fact that the Constitutional Court sits en banc will mean that the gradual change to the court over the next ten years will not result in any rapture of the court’s jurisprudence.
2.2 To the argument that ‘skills are comparatively scarce’ and with the inference that the present complement of eleven justices are irreplaceable, suffice it to say that the legal community has been working with the constitution for the past seven years and thus the pool of constitutional talent today is far larger than was the case prior to the initial appointments in 1994.
2.3 Proponents of the amendment argue that in Anglo-American system’s constitutional judges enjoy life tenure and thus the comparison made with the continental system where constitutional judges have a defined term is inapplicable. While judges in the US and Canadian Supreme Courts do enjoy life tenure, these courts do not only hear constitutional disputes. They operate within a system whereby all appeals are heard by one apex court. By choosing to constitute a separate Constitutional Court, South Africa a continental system of a specialist Constitutional Court separate from the highest court for non constitutional matters. Appointments to the Constitutional Court follow the continental model in that, unlike the SCA, judges can be appointed directly to the court without having previously been part of the judicial system.
3. Compelling reason need to be offered before constitutional amendments are introduced. Constitutional amendments of principle should certainly not occur when the arguments against their introduction are as powerful as the case with regard to a non-renewable term of twelve years for Constitutional Court judges. Thus, the only amendment which should be considered is an amendment to s176(1) of the constitution to provide a/the judge of the Constitutional Court is appointed for a non-renewable term of twelve years but must retire at 75 years. As judges of the High Courts are entitled to remain in office until they reach 75 years in cases where they have not completed 15 years service by the time they attain the age of 70, there is no reason why the judges of the Constitutional Court should not enjoy the same "age cap" so as to enable them to serve the complete 12 years term. This amendment would preserve the principle of a non-renewable term but would allow almost all appointments to the Constitutional Court to serve the complete term.
4. To the extent that there are concerns about pension benefits and the future careers of the existing judges of the Constitutional Court, these legitimate concerns can be dealt with in legislation without any need to introduce a principal constitutional amendment.
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