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DGRU: Amend constitution on judges' tenure

2011-07-26 18:36

Cape Town - The Constitution should be amended to create certainty in relation to the term of office of the chief justice specifically, the University of Cape Town's Democratic Governance and Rights Unit (DGRU) said on Tuesday.

It should set this term irrespective of how many years the judge had been in active service, DGRU director Richard Calland and researcher Chris Oxtoby said in a submission to the National Assembly's justice and constitutional development committee.

The committee is holding public hearings on the draft judges' remuneration and conditions of employment amendment bill, which is intended to facilitate the extension of current Chief Justice Sandile Ngcobo's term of office.

It also seeks to provide clarity on the appointment and extension of the term of offices of the chief justice and the president of the Supreme Court of Appeal.

Extension challenged


President Jacob Zuma recently extended Ngcobo's term of office for five years, the constitutionality of which was challenged and is now being considered by the Constitutional Court despite the remedying bill before Parliament.

In their submission, Calland and Oxtoby said the Constitution should also be amended to provide for the term of office of other Constitutional Court judges and that the term be set irrespective of how many years they had been in active service as judges.

The term of office of the chief justice is seven years or until the age of 75, whichever comes first, and that of other Constitutional Court judges 15 years or until the age of 75, whichever comes first.

It was further submitted that judicial independence could not be protected if the term of office of the chief justice, and all Constitutional Court judges, was open to constitutional attack and uncertainty.

Legal doubt

However, it was more important that the constitutional integrity of the laws intended to protect the tenure of office of the judges of the Constitutional Court were properly enacted by the relevant organs of government, they said.

The judiciary, as with all other branches of government, should ensure the integrity of the office of the chief justice, and all Constitutional Court judges, were not subject to legal doubt.

"Constitutional amendments should not be entertained lightly, but because of the need for certainty, an enduring solution to the current predicament, and the importance of Constitutional Court judges and the chief justice to constitutional integrity and legitimacy, we believe that a constitutional amendment would be justified in this case," Calland and Oxtoby said.

If the committee accepted that a constitutional amendment was appropriate, it was inconceivable that this could be passed before midnight on August 14, when Ngcobo's term expired.

Since there was general agreement that he should remain in office, not least because the reform process he was leading was mid-stream, a solution would have to be found.