Three legal organisations have written to chief justice Raymond Zondo, raising concerns and questioning the constitutionality of bringing in retired Constitutional Court justices to assist with new applications in the face of the apex court’s “huge workload”.
The move was clarified last week by the chief justice after a Sunday World report that retired justice Zak Yacoob had been appointed to the Constitutional Court to “advise the 11 justices of the court on which appeal cases to dismiss and which to entertain”.
After a letter from the Council for the Advancement of the South African Constitution (Casac), Zondo clarified that Yacoob, and other retired justices, on a rotation basis, would not “take part in the adjudication of any matter ... He renders only a support service.”
Zondo said they would be reading new applications given to them by serving justices, then drafting draft memoranda on these, which could then be adopted, rejected or amended by the serving justice.
The move was introduced because the workload at the ConCourt had greatly increased since the jurisdiction of the court had been broadened in 2013, while the number of its justices had not, he said.
But the National Association of Democratic Lawyers (Nadel), Freedom Under Law (FUL) and Casac all say granting leave to appeal is “core” to the judicial function of the 11 justices of the ConCourt.
It is “only for them”, said FUL.
Three letters were sent to Zondo on Monday.
“The proposal is unconstitutional and has the potential to create a perception that the sitting justices are not fit for the office they hold,” said Nadel.
The association has demanded that the chief justice reconsider the decision and said it “reserves its right to challenge the decision by way of judicial review”.
We are concerned about the influence they are able to assert over members of the court, and particularly the more junior or acting justices, through their memoranda
— Casac
Nadel said it fully understood the demands placed on the court’s 11 justices “and their possible needs for additional judicial hands”. But the constitution says judges are appointed for a non-renewable term of 12 years or until they reach the age of 70.
“The terms of the justices of the Constitutional Court are both limited and non-renewable,” said Nadel.
The association said more applications were rejected at the application for leave to appeal stage than after oral argument. “In fact, according to our research, only about 15% of all applications to the Constitutional Court are enrolled for oral argument,” said the letter.
“Litigants whose applications to the court are refused without oral hearings need the assurance that every member of the court has considered their own application and decided against granting leave,” said Nadel.
FUL said granting leave to appeal was “regulated by important procedures of the court ... The mechanism now resorted drives a bus through those.”
It added that appointing retired justices to advise on the outcome of pending cases may amount to a “circumvention of the constraints the constitution itself has imposed”. The work was not administrative in nature — “but part of the judicial function vested in the 11 justices and in them alone.
“Their views should not properly be shaped by memoranda designed to shape them, whether from retired colleagues, professors or practitioners, advising on the outcome.”
Casac also responded to the chief justice’s clarification to its earlier letter, saying it “compounds our concerns”. Casac said its latest letter was shared with Judges Matter, “who support its content”.
Casac said the preparation of a memorandum on a new application was “purely judicial in nature. That members of the court may reject or amend a draft memorandum prepared by the retired justices does not ease our discomfort.”
The retired judges names by Zondo — Yacoob and Justice Johan Froneman — were “senior judges who are held in high regard and who have considerable intellectual heft,” Casac added.
“We are concerned about the influence they are able to assert over members of the court, and particularly the more junior or acting justices, through their memoranda.”
Judicial independence required judges to be free of all outside influences, said Casac. The role played by retired justices meant they would be able to “colour” how serving justices considered matters.
All three organisations said they understood Zondo’s concerns about the increased workload but said this was not the answer.
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