Constitutional Court to hear legal bodies’ application on Monday

2011-07-15 13:14

The Constitutional Court will on Monday hear applications challenging the constitutionality of a section of the Judge’s Remuneration and Conditions of Employment Act.

President Jacob Zuma recently extended the term of office of Chief Justice Sandile Ngcobo for five years.

The applicants include the Justice Alliance of SA (JASA), Freedom Under Law (FUL), Centre for Applied Legal Studies (CALS), and Council for the Advancement of the SA Constitution (CASAC).

The National Association of Democratic Lawyers of SA (NADEL), the Black Lawyers Association (BLA), and the Inkatha Freedom Party’s Mario Oriani-Ambrosini are amici curiae (friends of the court).

The applicants contend, cumulatively, that section 8(a) of the Act is inconsistent with the Constitution because section 176(1) of the Constitution provides for an Act of Parliament, and only an Act of Parliament, to extend the terms of office of any Constitutional Court judge.

The second reason relied on is that the delegation of power by Parliament to the President is too wide and provides no guidelines for the exercise of the power.

It is also submitted that section 176(1) precluded the extension of the term of office of a particular Constitutional Court judge, including the Chief Justice, as distinct from extending the terms of all Constitutional Court judges.

The fourth argument is that, even if the President had the power to extend the term of office of the Chief Justice, the Constitution placed an obligation on that office to consult with the Judicial Service Commission (JSC) and political parties before making any extension.

NADEL and BLA urge that even if the relevant provision of the Act is unconstitutional, the Constitutional Court should suspend the invalidity and offer Parliament an opportunity to correct the defect.

They say that it is in the interests of justice for the term of office of the Chief Justice to be extended because this would facilitate a faster transformation of the judiciary.

The Chief Justice abides the decision of the Constitutional Court.

Oriani-Ambrosini was admitted as third amicus curiae but will not file written argument or address the court.

The President and the minister for justice and Constitutional development maintain that the applicants have not satisfied the requirements for granting direct access.

They insist that the President extended the term of office of the Chief Justice in terms of a law of general application which is consistent with the Constitution.

They argue further that the President is not obliged to consult with anyone before making the extension.

They also ask the court to hold that the law is not inconsistent with the Constitution because, on a proper construction, it is Parliament that has in fact extended the term of office of the Chief Justice by authorising the President to request the Chief Justice to continue in office.

The case is proceeding despite a remedying amendment bill now before Parliament. 

Join the conversation! encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions. publishes all comments posted on articles provided that they adhere to our Comments Policy. Should you wish to report a comment for editorial review, please do so by clicking the 'Report Comment' button to the right of each comment.

Comment on this story
Comments have been closed for this article.

Inside News24

Traffic Alerts
There are new stories on the homepage. Click here to see them.


Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.

Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire network.


Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.