Constitutional Amendment Bills: hearings

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
18 September 2001
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILLS: PUBLIC HEARINGS

Chairperson: Adv J H de Lange

Documents Handed Out:
Constitution of the Republic of South Africa Second Amendment Bill, 2001 (certified)
Black Sash Submission
Submission by Justice Chaskalson (Appendix 1)
UCT Law Faculty Discussion Document on Tenure of Judges of the Constitutional Court
South African Human Rights Commission Submission
Justice J M Hlope Submission (Document awaited)

SUMMARY
Public hearings continued and again concerned the Constitutional Amendment Bill as in so far as they impacted on the changing of the tenure of Constitutional Court judges. The main thrust of submissions was opposition to the provision of so-called life tenures for Constitutional Court Judges.

MINUTES
Dean of the Law Faculty, University of Cape Town
Professor Hugh Corder, Dean of the Law Faculty at UCT, argued that life tenure for Constitutional Court judges would be undesirable for a number of reasons. The main reason was that the Constitutional Court (CC) was not like other courts as the judges of this division bore the burden of being the final authority on certain matters in the governance process. He said that to fulfill their duties CC judges needed wisdom and a fierce sense of independence. These would be needed to fulfill just their ordinary duties. CC judges decide matters of great public importance and thus need a sense of awareness of change in public policy.

The fact that the tenure of CC judges was regulated in the Constitution was the source of their independence. As a result of this fact the judges knew they were secure in their positions and would thus not have to temper their judgment to be in favor with anyone. Prof. Corder then submitted that a fixed term of tenure leads to a relatively more frequent turnover of judges on the bench. This in turn leads to the appointment of younger judges to the CC. The appointment of younger judges to the Constitutional bench was a good thing as it led to a better relationship between the judiciary and society as a whole.

Prof. Corder then told the Committee that he knew the matter had been personalized and that he had on occasion been told that the amendment was intended to accommodate an individual. He told the Committee that he did not believe this statement and he would indeed not be before the Committee if this were true, instead he was there to argue against the amendment on a principled basis.

Modern trends had shown that all jurisdictions creating constitutional courts opted for fixed terms for the judges on this bench. Exceptions to this were the jurisdictions of India and Canada. Prof. Corder however stressed that many other jurisdictions had adopted the fixed term arrangement.

He said that the present system ensured a gradual turnover of judges, an arrangement that others argued would come through life tenure. He saw no reason why the retirement age of CC judges could not be raised to 75 thereby bringing these judges on par with other judges of superior courts.
Here the Chair, Adv de Lange, asked if the retirement age for other judges was not 70 with an exception being granted to those judges who have not served a full term of fifteen years. Prof. Corder confirmed that this was correct and added that all CC judges should be accommodated.

When these judges have served their twelve-year term or reached the mandatory retirement age of 70, they should be as financially well off as the judges of other courts. Prof. Corder said that these judges should get a full pension even after only twelve years of service. He said the reasons for this were firstly that the function that these judges fulfill, the service they grant South Africa as a whole, meant they deserved a full pension. Secondly there was only a hand full of individuals who fell into this category and the South African Government could undoubtedly afford to grant them the reward they deserved. Thirdly, the proper provision for judges upon their retirement would alleviate the need for them to find other positions, such as in (with respect) lower courts, a consequence which the Professor said was undesirable. The Professor said that these judges deserved to retire after their service on the CC bench and they should therefore have the resources to do so. Fourthly the adequate financial provision for CC judges would mean that the bench would attract the best legal minds.

Prof. Corder then expanded on his latter point, saying that a fixed term would likewise attract the best legal minds as these individuals might not want to spend the rest of their professional lives on the CC bench.

Prof. Corder then told the Committee that there would not be a wholesale replacement of the CC in the year 2006. Instead, if one looked at the ages of the present CC judges as well as when their term of service began, it would be seen that the present composition of the CC would result in the gradual replacement of the entire bench.

Ms F I Chohan-Kota (ANC) then asked the Professor what his motivation was for saying that it was undesirable for CC judges to move to lower courts after having served their term. She suggested that when young people were appointed to the CC, reappointment to lower courts after their term would be a real possibility. This in turn would militate against the appointment of younger people to the CC thereby undermining the overall representivity of the court. Prof. Corder said that through the work he and others had done on the old Appellate Division it was easy to see that the bench tended to be quite old. The members of this bench were on average between their late fifties and early sixties. This is the age at which they went to the bench where they would stay until they were quite old. He then reminded that in the old days it was all too easy to see the dangers of ossification or stagnation in the judiciary. He stated that young people on this bench was thus a very good thing that would only come about if our mindset was changed, especially that of the Judicial Services Commission.

Mr Jeffrey (ANC) then added to Ms Chohan-Kota’s question, saying that Prof. Corder’s argument seemed to be premised on the fact that judges would want to be on the CC bench for life, and not want to go to lower courts. He said that if judges wished to go to other courts, they might temper their judgments towards the end of their term so that they might gain the favor of individuals who could offer them employment after their term.
Prof. Corder said that he did not object to a CC judge serving on a lower bench once their term had run. This judge would undoubtedly add value but his concern lay in the so-called burn out factor. Prof. Corder said that serving on the CC was an incredibly demanding job and had learnt through personal contact that the position was extremely tough. Furthermore the matters dealt with by the High Court were relatively run of the mill as opposed to the exciting matters which came before the CC. Prof. Corder said that perhaps this choice should ultimately be left up to the CC judges themselves.

Adv de Lange then commented that it was highly unlikely that an individual would want to continue working after they had received a full pension.
To this Prof. Corder added that from the perspective of the structure of the judiciary and the experience that a CC judge would bring with them, it was fine for a CC judge to serve on another bench after serving on the CC bench. However from a personal point of view, allowing this might not be in the best interest of the South African judicial system.

Mrs S M Camerer (NNP) told Prof. Corder that Justice Chaskalson had written the Committee outlining a manner in which Section 176 of the Constitution could be amended to accommodate what was being sought. Justice Chaskalson suggested that the section be changed to provide that the tenure of CC judges be regulated by legislation, that the salaries, allowances, and benefits of judges cannot be reduced and that a Bill which seeks to alter the tenure of CC judges must also be passed by a two thirds majority of the National Assembly. She wanted to know what Prof. Corder’s opinion on the suggestion was.
Prof. Corder said that it would be favourable to provide for tenure in legislation. This combined with the fact that the Constitution is more onerous to change would operate in the favor of CC judges. However, he reminded that if the fear was a tyrannical majority, it should be noted that there was little mechanism in law to stop such a body. He concluded that the decision would ultimately be a political one to betaken by the Committee.

Adv de Lange commented that if the term of twelve years is provided for in the Constitution, then to change the tenure would require a Constitutional amendment. However, if the tenures of judges were regulated through legislation then it would only require a legislative amendment. This amendment would however still need to pass the constitutionality test.

Mrs Camerer told Prof. Corder that, according to Justice Chaskalson, using legislation to bring the judges on par would result in the distinction between them and other judges being done away with. The concern was that it was too easy to amend legislation. Justice Chaskalson suggested that this could be overcome by requiring a two-thirds majority in the National Assembly to change such legislation.
Prof. Corder could not see the point of attaching such a special procedure and felt that if this was to be done then everything might as well have been left in the Constitution itself.

Adv de Lange said that the difficulty before the Committee was considering a Bill that was subject to a great deal of disagreement. It would be a big problem passing such legislation in light of the fact that the majority of the legal fraternity had expressed their distaste towards the proposed amendments. Adv de Lange suggested that a possible solution would be to put all judges on par in all matters besides tenure. In the case of tenure CC judges would still be subject to a cap on the amount of years that could be served on the CC bench. Justice Chaskalson had suggested a cap of between fifteen to twenty years. Adv de Lange said that this matter could be determined a later date and all that was important at present was the determination of the principle that would govern the term of CC judges.

Adv de Lange explained what he meant by the cap. Judges who had served on other courts would be able to stay a maximum of twelve or fifteen years, depending on the cap. Judges who sit on the CC bench as judges for the first time would be able to stay the maximum amount of years, including a term that would see them on the bench past the mandatory retirement age of seventy. In short the terms and conditions of employment of CC judges would be exactly the same as other superior court judges but subject to a cap.
Prof. Corder said that he would have no objection with such a provision if the term of judges did not greatly exceed twelve years. He said that although undesirable, at most their terms could be increased to fifteen years, that period of time after which the judge would qualify for a full pension. He however stressed that he felt that CC judges should be eligible for full pensions even after just twelve years of service.

Justice J M Hlope
Justice Hlope, Judge President of the Cape Provincial Division, said that once the amendment had been made available he had circulated it to all the judges of the Cape Provincial Division. All the judges commented and the submission being made before the Committee was the collective view of the entire Cape Provincial Bench and not those of Justice Hlope specifically. The judge said that the Division did not approve of the amendments and thus felt that they should not be given effect to.

Justification for their adverse stance flowed from the fact that circumstances which existed at the time of the formulation of the Constitution, that necessitated the fixed terms, are still present according to the views of the Cape Provincial Division. Furthermore it was felt that CC judges were different to other judges as they had an increased degree of power. Justice Hlope reminded Members that Parliament was subject to the Constitution and that the CC was the custodian of the Constitution. It was thus the only court poised to upset the will of the legislature. South Africa followed the German, Italian, Spanish, Portuguese and Czech systems, that is, the fixed term system. South Africa often looked to these jurisdictions for constitutional principles.

Justice Hlope raised concerns about continuity. He said that out of the twelve judges presently on the CC bench, only four of these would not be able to serve the twelve-year term. In light of this there could not legitimately be concerns about continuity in the CC.

Justice Hlope said that he would like to publicly associate the Cape Provincial Division with the Transvaal Provincial Division and their views on this particular matter. Despite saying no to the amendments, Justice Hlope said that as a last resort solution to the problems, the Cape Provincial Division would accept, as a compromise, the provision that CC judges are able to serve past 70 years of age to a maximum of 72.

Mrs Camerer asked the judge to elaborate on his suggestion and whether this position would be provided for in the Constitution through an amendment or in legislation. Justice Hlope said this would be a technical amendment that could be achieved through the amendment of the Constitution.

Mr M A Mizizi (IFP) asked what in Justice Hlope’s opinion should happen to the gratuity given to CC judges were their position brought to resemble more closely that of other judges. Justice Hlope said that the gratuity would have to be calculated in the same as it is calculated for other judges in superior courts. He added that he would not be averse to CC judges receiving a full pension even after just twelve years of active service on the CC bench.

Adv de Lange told the judge that his compromise suggestion was interesting to him. Adv de Lange told the judge he would ideally like to pass the Bill with the least amount of disagreement. He would also have to get a two-thirds majority to bring it into effect. He said that one of the suggestions given was to put CC judges in the same position as other judges but with a cap on the maximum amount of years that an individual could serve on the CC bench. One suggestion was a cap of fifteen years as this is what is required for a full pension. Adv de Lange asked Justice Hlope how he felt about this suggestion as a solution to the present problem.
The judge said that for a start putting CC judges on par with others might be a good idea but it should be remembered that CC judges are not High Court judges. Justice Hlope made this comment in relation to the extension of the cap from twelve to fifteen years and said that ultimately he would make no comment on such extension.

Adv de Lange then put to Justice Hlope a comment made by the Judge President of the CC. Justice Chaskalson had said before the Portfolio Committee that what had changed was that the CC had proved itself and positioned itself at the apex of a single judiciary. Despite this, the CC was the court of final instance only in matters constitutional while the SCA was still the final court in all other matters.

Justice Hlope replied that he did not agree. He supported the fact that change had occurred but did not agree with the statement that there was a single judiciary with the CC at its apex. Instead, in line with circumstances that existed at Kempton Park, at the drawing up of the Constitution, the CC was a court that operated in a unique, politically charged environment.

Mr Jeffrey told Justice Hlope that there seemed to be an anomaly. If the other amendment got passed then it would change the position relating to the Chief Justice. As it stood now, the Chief Justice of South Africa was appointed out of the Supreme Court of Appeal (SCA,) but after that amendment the Chief Justice would hail from the CC. Here that office would be held for only twelve years whereas as it stands now the Chief Justice holds that position for a much longer time, until he or she retires. Mr Jeffrey said that to him this felt strange.
Justice Hlope said that this was indeed an anomaly and that the problem needed to be dealt with. Justice Hlope suggested in a modest way that the time had come to accommodate for the fact that people would want to wield power, or hold an office for as long a possible. This was to be combined with the fact that judges were getting younger.

Adv de Lange said that some thought the CC was a political while others disagreed. He said that some individuals had come before the Committee to argue that the amendment is needed as it would make the court less political. Others say that the amendments are bad because it would make the CC even more political. Justice Hlope responded that when one said the CC operated in a political environment this was to be carefully interpreted. When a lower court declares a piece of legislation unconstitutional, this declaration is of no effect until confirmed in the CC. This means that those other courts do not operate at the same level as the CC, which has the final say in matters relating to the Constitution. Here it can be seen that the CC is the only court to operate in a political climate.

Black Sash
Ms Isobel Frye, National Advocacy Manager for Black Sash, raised a number of issues; the tenure of CC judges, the provision relating to the appointment of Deputy Ministers by the President and introduction of Money Bills.

On the tenure of CC judges, the thrust of the Black Sash’s opposition to the amendments was that the difference of length of tenure and security of tenure should be remembered. Ms Frye stated that as it stood the Constitution in Section 174 dictated the requirements and procedures for the removal of a CC judge from the bench. As a result, the security of CC judges tenure was provided for. On length of tenure, Ms Frye said that CC judges wielded a different power, they were responsible for the oversight of the Constitution and they were appointed in a different manner to other judges. Life tenure for CC judges would see the ossification of the views of the CC bench and the entrenchment, for a generation, of the opinions of a few.

Ms Frye said that just because the South African judiciary was at the beginning of the restructuring of the judiciary did not mean that such an amendment was required right away. Instead the Constitution was intended to be lasting law, not to be changed every time a little concern such as this arose.

Black Sash was concerned about the new provision relating to the appointment of Deputy Ministers by the President. They felt that the position should remain as it was and that these Deputy Ministers must of necessity be appointed out of the democratically elected pool, namely the National Assembly.

South African Human Rights Commission (SAHRC)
Mr Govender said that the CC had played an important role in building up a constitutional jurisprudence and has established itself as an important independent court. It is important to promote the stature of this court and not the opposite. Mr Govender submitted that the amendments would accomplish the latter rather than the promotion of the Court.

Mr Govender then made reference to a statement made by the Minister of Justice, dated 24 August 2001, in which he said that it was his duty to pass the amendment. Mr Govender said that he hoped this statement did not mean that the SAHRC had no capacity to make suggestions that could amend the Bill. Adv de Lange said that the process was being confused. He explained that the Minister of Justice’s process relating to the Bill had ended on the 10^th of August and that it was now the duty of the Committee to consider the Bill.

Mr Govender continued, saying that the concept of security of tenure needed to be separated from the idea of term of service. Secondly, the provision relating to term of tenure needed to be separated from the provision for retirement. He submitted that the drafters of the Constitution had made a mistake when they provided for both of these in one subsection. Here Mr Govender contended that these two should have been placed apart, each with their own subsection. Each of these ideas in turn represented a separate occasion on which the Constitutional drafters chose to distinguish CC judges from others. The onus to justify changes to either one of these then falls onto those who seek a change to either provision. Mr Govender submitted that those motivating in favor of change had failed to prove or justify the need to change either of these provisions.

Mr Govender said upon a separation of these two concepts, and looking at the provision relating to the retirement age of CC judges, the SAHRC could see no logical basis upon which to distinguish CC judges from other judges in relation to retirement change. It therefore follows that the SAHRC saw no reason to oppose the provision of parity between judges in as far as it relates to the mandatory retirement age.

Adv de Lange told the SAHRC that he would very much like to pass this piece of legislation with as little opposition as possible. Once again he mentioned the compromise suggested before, namely that CC judges be treated in exactly the same manner as other superior court judges but subject to a cap of between fifteen to twenty years. This would mean, amongst other things, that CC judges would be able to serve past seventy years of age, if they had not yet served a total of fifteen years as judge.

Mr Govender said that this was fine but the problem would arise in relation to the extension of the maximum term to fifteen or more years.
Adv de Lange told Mr Govender that this was only a suggestion and that at present he was merely trying to work out the principle to be applied. What the cap would actually be would be a decision taken later.

According to Justice Chaskalson’s submission before the Committee, what had changed was the fact that the CC had established itself as a real court of the land. He further submitted that there was presently a move towards a unitary court system with the CC at the apex of this new structure, a position reflected in the move to provide that the Chief Justice of South Africa would now be appointed from the CC bench. Justice Chaskalson said that it was within this context that the tenure of CC judges needed to be considered.

Mrs Cohen, for the SAHRC, said that this was a good argument but that this unitary system had not emerged yet. Once this system had been established perhaps then would be a more appropriate time to consider amendments such as these. Mr Govender added to the comments of his colleague, saying that it was necessary to control power with checks and balances. The fixed tenure of CC judges was one such check on power. To change such a provision would require compelling reasons, reasons which had yet to be shown in this instance.

Dr Delport (DP) said that perhaps the Committee was placing too much importance on the matter, as the Constitution was the supreme law of the land. This meant that the power of Parliament was subject to the Constitution as was the power of the Constitutional Court. So in both instances the Constitution is the supreme law, with the judgements of the CC also being subject to it. So perhaps too much power or substance was being attributed to the CC and its decisions.
Mr Govender said that this was correct, the Constitution was indeed the supreme law. However, the CC was responsible for the interpretation of the Constitution and thus gave substance to it. In this way it could be seen that the CC was the final arbiter and interpreter of the Constitution, making it capable of dictating what was in the Constitution.

Mrs Camerer asked the SAHRC to elaborate on a statement in their submission, that the amendments would undermine the protection of human rights.

Mr Govender said they did not believe that the amendment would directly undermine the protection of human rights, but would create a disposition that would potentially allow for such undermining. To add to this the CC promotes a culture of human rights.

Ms Chohan-Kota recalled that the SAHRC had said that the twelve-year cap should be kept, with the retirement age of the judges being dealt with in legislation. Ms Chohan-Kota asked whether the Commission felt that this was the manner in which equity would be achieved.
Mr Govender said the distinction between CC judges and other judges of superior courts was a function of constitutional objectives. He said that in the view of the SAHRC, if a matter is related to constitutional objectives, then it is justified. The Commission had mentioned the matter of retirement age because they were unable to identify a constitutional principle or objective that would justify distinguishing between different judges on this basis.

Adv de Lange said that there were those who were vehemently opposed to the tenure of CC judges being provided for in legislation. They argued that these provisions should stay in the constitution because they would then enjoy increased protection. A constitutional amendment would require a two-thirds majority while a amendment to legislation would require only a fifty percent vote in favor. He pointed out that this might be problematic. If there was a tyrannical Parliament in power then a two-thirds majority would be able to entrench an unfavorable position. To change such a position would also require a two-thirds majority. If this were done then the only way to challenge the matter would be on the basis of section 1 of the Constitution. So if two-thirds was obtained, a tyrannical Parliament could really knock the CC bench down. On the other hand, if these provisions were contained in legislation, then the whole matter would be much more open to challenge. Ultimately the legislation trying to give effect to this would come before the very same court that it sought to adversely affect. In this light it would thus seem that the provision for tenure in legislation has the capacity to offer increased protection to the CC bench and its tenure.

Adv de Lange then asked what the view of the Commission was on judges serving in lower courts after they had served on the CC bench. Mr Govender said that he had absolutely no problem with this.

The meeting was adjourned.

Appendix 1

Submission by Justice Arthur Chaskalson

14 September 2001

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.

Chaskalson
31 August 2001