MUNGO SOGGOT, Johannesburg | Friday
THE Ministry of Justice says it will forge ahead with an amendment to the Constitution that will give Constitutional Court judges the same “life” tenure as the rest of the judiciary – despite opposition from some key judges.
Cape judges are now preparing a memorandum on the amendment, which has attracted unexpected controversy after the Judge President of the Transvaal, Bernard Ngoepe, and his division formally opposed it.
The squabble could have serious practical ramifications. The President of the Constitutional Court, Judge Arthur Chaskalson, has backed the amendment.
Judge Chaskalson, who has been asked by Minister of Justice Penuell Maduna to stay two more years after turning 70 in November, has raised the possibility of retiring to prevent what he sees as a matter of principle being clouded by his personal position.
John Hlope, the Judge President of the Cape, said this week his division’s document is still being discussed. He says some of the Cape judges are not in favour of the amendment “and they have every right not to be”.
Judge Hlope added he could not yet say whether such judges were in the majority, but that the memorandum will be finalised and made public next week.
The commonly held view in legal circles is that the amendment will pass, despite the controversy being stirred as judges across the country take sides. Some observers say that while judges’ opinions on the amendment are interesting, it is a political issue which means their views are no more important than anyone else’s.
The justice ministry’s representative, Paul Setsetse, said this week: “We will not change the decision to amend the constitution. I don’t really think we will back down. We are not anticipating any kind of serious opposition from our judges.”
Acting Chief Justice Joos Hefer declined to discuss a meeting of the Supreme Court of Appeal judges this week on the matter, saying it was “not for us to comment on a matter which is essentially political”.
Judge Hefer added that he does not endorse the decision of other courts – namely the Johannesburg and Pretoria High Courts (still known as the Transvaal division) – to express their opinion in the way that they have.
The amendment would replace the current rule that Constitutional Court judges serve a non-renewable 12-year term and leave at 70. Other South African judges do not have such restrictions. They retire at 70, unless they have been in the job for fewer than 15 years. In that case, they can stay on until they have served for 15 years, but not beyond 75.
The arguments about the amendment boil down to flexibility versus continuity, the latter being favoured by the proposed changes. Those in favour say the amendment would strengthen the court, entrenching stability and continuity.
They argue that Constitutional Court judges’ inferior tenure to the rest of the judiciary could undermine their independence. They say it is inappropriate for younger Constitutional Court judges, who might have to retire in say their 40s or 50s, to have to seek employment elsewhere or in other courts. And they say that natural attrition – caused by judges retiring – will provide the court with a sufficient injection of new blood.
Those against argue the reasons for the current rules in the Constitution remain – that the court must regularly be staffed with new judges, and that Constitutional Court judges have too much power to be given the same tenure as other judges.
They point to other jurisdictions that also place tight limits on Constitutional Court judges. They argue there is no reason why younger, retiring Constitutional Court judges should not move to other courts.
Judge Ngoepe concludes in his memorandum: “The tenure of constitutional judges is, given the nature of the court, a matter of constitutional importance and must be left in the Constitution. Reasons for putting it in the Constitution in the first place are as valid now as they were then. Once the proposed amendment goes through, the tenure would be comparatively easy to tamper with by any government, present or future.”
In a rare statement to the Sunday Times, which sought comment from Judge Chaskalson on the Ngoepe memorandum, the Constitutional Court president says: “It [the Constitutional Court] should be, and be seen to be, an integral part of the court system and not apart or on its periphery.”
Judge Chaskalson, who will address the National Assembly’s justice committee on the amendment, adds: “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.”
One well-placed observer said “a preponderance of senior judges support the change”. He added the Constitutional Court has from its inception been regarded by high court judges with some hostility as an “innovation. This is the last gasp of judicial resistance to the regularisation of the Constitutional Court.”