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[2011] ZACC 23
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Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC) (29 July 2011)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
[2011] ZACC 23
Case CCT 53/11
In the matter between:
JUSTICE ALLIANCE OF SOUTH AFRICA
…..................................................
Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
…..................
First Respondent
MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
…..........................................
Second
Respondent
CHIEF JUSTICE SANDILE NGCOBO
…..............................................
Third
Respondent
and
Case CCT 54/11
In the matter between:
FREEDOM UNDER LAW Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
…..................
First
Respondent
DIRECTOR-GENERAL: JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
…..........................................
Second
Respondent
MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
….............................................
Third
Respondent
CHIEF JUSTICE SANDILE NGCOBO
…............................................
Fourth
Respondent
and
Case CCT 62/11
In the matter between:
CENTRE FOR APPLIED LEGAL STUDIES
….........................................
First
Applicant
COUNCIL FOR THE ADVANCEMENT OF
THE SOUTH AFRICAN CONSTITUTION
….......................................
Second
Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
…..................
First
Respondent
MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
…..........................................
Second
Respondent
CHIEF JUSTICE SANDILE NGCOBO
…..............................................
Third
Respondent
and
NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS
…....
First
Amicus Curiae
BLACK LAWYERS ASSOCIATION
…........................................
Second
Amicus Curiae
MARIO GASPARE ORIANI-AMBROSINI MP
…..........................
Third
Amicus Curiae
Heard on : 18 July 2011
Decided on : 29 July 2011
JUDGMENT
THE
COURT:
Introduction
The
three applications for direct access before us arise from a
decision by the President of the Republic of South Africa to
extend
the term of office of the Chief Justice of South Africa for five
years. They were all brought during the court recess
and heard
together. All the applicants challenge the constitutionality of the
law that authorises the process by which the
term of office of the
Chief Justice was extended and, if the law is found to be valid,
put in issue the constitutional validity
of the conduct of the
President in the process of extending that term of office.
Background
Before
its amendment in 2001,
1
section 176 of the Constitution provided that a Constitutional
Court judge is appointed for a non-renewable term of 12 years
but
must retire at the age of 70. The 2001 amendment did not alter the
term of appointment of a Constitutional Court judge
but gave
Parliament the power to extend the term of office of a
Constitutional Court judge. Section 176(1) now provides:
“
A
Constitutional Court judge holds office for a non-renewable term of
12 years, or until he or she attains the age of 70, whichever
occurs
first, except where an Act of Parliament extends the term of office
of a Constitutional Court judge.”
Section
4 of the Judges’ Remuneration and Conditions of Employment
Act
2
(Act) provides that a Constitutional Court judge, whose 12-year
term of office expires or who reaches the age of 70 years before

completing 15 years’ active service, must continue in office
until the completion of 15 years’ active service or
until
that judge attains the age of 75 years, whichever is the sooner.
3
Section
8(a) of the Act
4
provides:
“
A
Chief Justice who becomes eligible for discharge from active service
in terms of
section
3(1)(a)
or
4(1)
or
(2)
,
may, at the request of the President, from the date on which he or
she becomes so eligible for discharge from active service,
continue
to perform active service as Chief Justice of South Africa for a
period determined by the President, which shall not
extend beyond
the date on which such Chief Justice attains the age of 75 years.”
In
effect, section 8(a) permits the further extension of the term of
office of the Chief Justice exclusively. It allows a Chief
Justice,
whose 12-year term in this Court is to expire and who will have
completed 15 years’ active service, to remain
the Chief
Justice of South Africa at the request of and for a period
determined by the President.
The
12-year term of office of the incumbent Chief Justice expires at
midnight on 14 August 2011.
5
He will also have completed more than 15 years’ active
judicial service by this date.
6
It follows that the Chief Justice cannot continue in office beyond
midnight on 14 August 2011 unless his term of office is
validly
extended before that date.
On
11 April 2011 the President requested the Chief Justice in writing
to remain in office for an additional period of five years:
“
Dear
Chief Justice Ngcobo
REQUEST TO CONTINUE TO
PERFORM ACTIVE SERVICE AS CHIEF JUSTICE OF SOUTH AFRICA
I am advised by the Minister of
Justice and Constitutional Development, Mr JT Radebe, MP, that on 15
August 2011 you will complete
15 years of active service as defined
in section 1 of the Judges’ Remuneration and Conditions of
Employment Act, 2001 (Act
No. 47 of 2001) (the Act), and
consequently that you will, in terms of section 176(1) of the
Constitution of the Republic of
South Africa, 1996, read with
section 3(1)(a) of the Act, be eligible to be discharged from active
service with effect from the
said date.
I am also aware that Cabinet
has recently approved the Constitution Seventeenth Amendment Bill
and the Superior Courts Bill which
seek to consolidate the
outstanding aspects relating to the transformation of the judicial
system and the judiciary in particular,
and to enhance judicial
accountability and access to justice in general. I am further
advised that Parliament will soon be seized
with these Bills and
other Bills which impact directly on the judiciary, which have been
outstanding for a long time. I take
cognizance of the critical role
you have, of providing leadership to the Judicial Branch of
Government whose contribution will
be vital during the stages of
processing these Bills and their ultimate enactment and
implementation.
Section 8(a) of the Act
provides that, ‘
A Chief Justice who becomes eligible for
discharge from active service in terms of section 3(1)(a) or 4(1) or
(2), may, at the
request of the President, from the date on which he
or she becomes so eligible for discharge from active service,
continue to
perform active service as Chief Justice of South Africa
for a period determined by the President, which shall not extend
beyond
the date on which such Chief Justice attains the age of 75
years
’.
Having regard to the above, I,
in terms of section 8(a) of the Act, would like to request you to
continue to perform active service
as Chief Justice of South Africa
from the 15
th
August 2011 until 15 August 2016.
I will appreciate your response
to my request, as well as your views on the period I have suggested.
Yours sincerely
JACOB GEDLEYIHLEKISA
ZUMA
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA”
This
is the first time that section 8(a) has been used by the President.
On 2
June 2011 the Chief Justice responded to the President’s
request in writing:
“
Dear
Mr President
REQUEST FOR THE CHIEF
JUSTICE TO CONTINUE TO PERFORM ACTIVE SERVICE AS CHIEF JUSTICE OF
SOUTH AFRICA
I refer to the letter from the
President of 11 April 2011 requesting me to continue to perform
active service as Chief Justice
of South Africa.
I have carefully considered the
reasons for the request and the period suggested by the President. I
have decided to accede to
the request and continue to lead the
Judicial Branch of Government during this critical time of the
transformation of the Judiciary
and Judicial system in South Africa.
A number of judicial
transformative initiatives have recently been undertaken by the
Minister of Justice and Constitutional Development
in collaboration
with the Chief Justice and the Judiciary. Some of the most important
programmes which require leadership over
the next five years are the
following:
The process of implementing
Proclamation No. 44 of 2010 by the President establishing the
Office of the Chief Justice as a national
department located within
the Public Service would only be completed over the next year;
The development of a model and
policy in respect of the creation of an independent Office of the
Chief Justice in line with
the independence of the Judiciary is
only expected to be finalised over the next two years;
The establishment of the
Constitutional Court as the apex Court of South Africa and the
constitutional recognition of the Chief
Justice as the Head of the
Judiciary and Head of the Constitutional Court proposed in the
Constitution Seventeenth Amendment
Bill and the Superior Courts
Bill, must still be piloted through Parliament and the subsequent
implementation would have to
occur over the next five years;
The Access to Justice
Conference scheduled for July 2011, is expected to yield programmes
to improve access to justice throughout
the country, including the
deep rural areas of South Africa, and their implementation would
require the Judiciary to work together
with the Minister of Justice
and Constitutional Development over the next five years;
Consultation and negotiation
with the Minister of Justice and Constitutional Development on the
draft Judicial Code of Conduct
and the Regulations for the Register
of Registrable Interests for Judges, are currently underway; and
The changes to the legislative
framework for dealing with complaints on judicial conduct are only
in the first stages of implementation
and it is expected that
substantial development to improve judicial accountability will
take place over the next five years.
I am therefore in agreement
with the President that a five year term is appropriate and adequate
to place the independence of
the judiciary, judicial accountability
and access to justice on a sound footing and continuity in
leadership is vital at this
stage of these transformative changes.
Warmest regards,
I am, sincerely,
S. SANDILE NGCOBO
CHIEF
JUSTICE OF THE REPUBLIC OF SOUTH AFRICA”
On 3
June 2011 the President effected the extension of the term of
office of the Chief Justice.
7
Later that day, the President communicated this decision to the
Judicial Service Commission (JSC) and to leaders of the political

parties represented in the National Assembly before he announced
his decision in an address to Parliament.
Applications before this Court
The
first application for direct access was brought on 20 June 2011 by
the Justice Alliance of South Africa (JASA), a voluntary

association with legal capacity. The second application was
launched on the same day by Freedom Under Law NPC (FUL), a
non-profit
company.
8
The third application for direct access was brought before this
Court three days later,
9
jointly by the Centre for Applied Legal Studies (CALS) and the
Council for the Advancement of the South African Constitution

(CASAC). CALS is institutionally part of the University of the
Witwatersrand; CASAC is an association with legal capacity.
The
application by CALS and CASAC was in some sense precipitated by the
first two applications. CALS and CASAC had, before
the launch of
the applications in this Court by JASA and FUL, instituted
proceedings in the North Gauteng High Court, Pretoria
for a
declaration of constitutional invalidity of section 8(a) of the
Act, but sought to put those issues before this Court,
if direct
access were granted to JASA and FUL.
On
22 June 2011, and before the application by CALS and CASAC had
materialised, this Court issued directions, calling upon those

opposing the applications to respond fully and quickly.
10
The CALS and CASAC application soon arrived and similar directions
were issued a day later.
11
We recognised the importance of all three applications being heard
together early enough for a judgment to be delivered before
the
term of the Chief Justice expires and scheduled the hearing
accordingly.
12
The
President, the Minister and the Chief Justice are respondents in
all three applications. The President and the Minister
oppose all
applications while the Chief Justice abides the decision of this
Court. Although the Director-General for Justice
and Constitutional
Development, who is an additional respondent in the FUL
application, filed an intention to oppose, she took
no active part
in the proceedings.
The
National Association of Democratic Lawyers (NADEL)
13
and the Black Lawyers Association (BLA)
14
were admitted as amici curiae. Both organisations sought to make
submissions on remedy only. In the event of a finding of
constitutional invalidity, they seek a final order suspending the
constitutional invalidity, in order to permit Parliament to
remedy
the defect, the effect of which would be to allow the Chief Justice
to continue in office beyond 14 August 2011. A Member
of Parliament
for the Inkatha Freedom Party, Dr Oriani-Ambrosini, was also
admitted in his personal capacity as the third amicus
curiae.
15
He provided the Court with certain information regarding the
parliamentary deliberations. He also attached the Judges’

Remuneration and Conditions of Employment Amendment Bill
16
(Bill), which he said was to be considered to remedy any defect in
section 8(a), and asked the Court to give guidance on its
content.
The
last application for admission as an amicus curiae by the
Democratic Governance and Rights Unit (DGRU), was lodged too late

to give other parties an opportunity to respond.
17
This applicant was informed that its submissions would be taken
into account in the course of this judgment.
On
the morning of the hearing the Minister filed a supplementary
affidavit to which he had attached the Bill. The affidavit
states
that the Minister does not accept that section 8(a) is
unconstitutional. However, out of excessive caution (“
ex
abundante cautela
”) he has resolved to seek an amendment
of section 8(a) in order to remove any vagueness or ambiguity that
may be considered
to exist in respect of the extension of the term
of active service of the Chief Justice. He explains that, to this
end, on
7 July 2011 he introduced the Bill in the National
Assembly. It provides, amongst other things, for a minimum period
of active
service of the Chief Justice. He added that it is
reasonably expected that the Bill will be passed by both houses of
Parliament
in the first half of August 2011.
Standing, direct access and urgency
There
was ultimately no debate in relation to standing, direct access and
urgency. We dispose of them briefly. All the applicants
claimed
standing in the public interest, in the interest of their members
or in their own interest, pursuant to the standing
provision of the
Constitution.
18
They relied variously on certain constitutional or democratic
concepts, which may be summarised as follows: the protection
of the
Constitution; the protection and advancement of the understanding
of and respect for the rule of law and the principle
of legality;
the protection of the administration of justice and the
independence of the judiciary; the promotion, protection
and
advancement of human rights; the strengthening of constitutional
democracy; the promotion of social justice and equality;
public
accountability and open governance. The President and the Minister
do not dispute the applicants’ standing. That
the applicants
have standing cannot be gainsaid.
Issues
of direct access and urgency were disputed by the President and the
Minister in their answering affidavits. By the close
of the
hearing, however, both the President and the Minister conceded that
it was in the interests of justice for this Court
to give a final
determination on all issues raised. They urged us to decide the
matter as quickly as possible, so as to enable
the Executive and
Parliament to determine an appropriate course of action, if any
change indeed proves necessary before 14
August 2011. We accept
that the matter is urgent and must be resolved as quickly as
possible. We have endeavoured to achieve
this result.
Direct
access is accordingly granted to all the applicants.
Constitutional
and legal framework
The
determination of this case turns on the interpretation of section
176(1) of the Constitution and section 8(a) of the Act,
against the
background of the constitutional imperatives of the rule of law,
the separation of powers and judicial independence.
It is
convenient first to set out the applicable constitutional and
statutory framework, before identifying the issues to be
decided.
The
appointment of judicial officers to this Court is governed by
section 174 of the Constitution. Section 174(3) provides:
“
The
President as head of the national executive, after consulting the
Judicial Service
Commission
and
the leaders of parties represented in the National Assembly,
appoints the Chief Justice and the Deputy Chief Justice and,
after
consulting the Judicial Service Commission, appoints the President
and Deputy President of the Supreme Court of Appeal.”
The
provision creates a distinctive procedure for appointing the Chief
Justice and Deputy Chief Justice. The President, after
consulting
with the JSC and the leaders of the parties represented in the
National Assembly, appoints the Chief Justice and
Deputy Chief
Justice.
Section 174(4) deals with the procedure for appointing the other
judges of this Court. The JSC is required to compose a list
of
nominees, which must have three more names than the number of
vacancies, and submit this list to the President. The President

then makes appointments from this list, or from a supplemented
list, if need be. The President is required to consult with
the
Chief Justice and the leaders of the parties, represented in
Parliament, before making an appointment.
19
The
tenure of Constitutional Court judges is governed by section 176(1)
of the Constitution,
20
stating that a Constitutional Court judge holds office for a
non-renewable term of 12 years or until she or he is 70 years
old,
whichever comes first.
Section
176(1) also contains an exception: an Act of Parliament may extend
the term of a Constitutional Court Judge.
21
The original formulation of section 176(1) did not contain
the caveat “except where an Act of Parliament extends the
term
of office of a Constitutional Court judge.”
22
This was added by section 15 of the 2001 amendment of the
Constitution.
23
In its original form, section 176 read: “[a] Constitutional
Court judge is appointed for a non-renewable term of 12 years,
but
must retire at the age of 70.”
The
Act deals with the remuneration and conditions of employment of
judges. According to its long title, its purpose is “[t]o

provide for the remuneration and conditions of employment of judges
of the Constitutional Court, the Supreme Court of Appeal
and the
High Courts; and for matters connected therewith.” The Act
engages section 176(1) of the Constitution in two
provisions:
section 4 and section 8(a). These sections both purport to give
effect to the amended section 176(1).
Section
4(1)
24
allows for the extension of the term of office of a Constitutional
Court judge if, at the point when his or her 12-year term
has
expired, he or she has not yet completed 15 years’ active
service.
25
Section 4(2) allows a Constitutional Court judge to continue
serving until the age of 75, if he or she has not yet completed
15
years of active service at the age of 70.
Section
8(a) empowers the President to extend the term of service of a
Chief Justice for a period to be determined by the President
which
does not extend beyond the time at which the Chief Justice attains
the age of 75.
26
The
interpretation of section 176(1) and section 8(a) necessarily
engages the concepts of the rule of law, the separation of
powers
and the independence of the judiciary. The Constitution and
decisions of this Court give specific meaning to these concepts.
Section
1 of the Constitution sets out the founding values of our
democratic state, namely human dignity, equality, freedom,

non-racialism and non-sexism, supremacy of the Constitution and the
rule of law, and universal adult suffrage.
27
The significance of the rule of law and its close relationship with
the ideal of a constitutional democracy cannot be over-emphasised.
Section
2 of the Constitution enshrines the supremacy of the Constitution.
It states that the Constitution is the supreme law
of the country
and that any law or conduct inconsistent with it is invalid.
28
The
principle of the separation of powers emanates from the wording and
structure of the Constitution. The Constitution delineates
between
the legislature, the executive and the judiciary. This Court
recognised a fundamental premise of the new constitutional
text as
being “a separation of powers between the Legislature,
Executive and Judiciary with appropriate checks and balances
to
ensure accountability, responsiveness and openness”.
29
The
Court has highlighted the importance of separation of powers in
ensuring that the courts are able to discharge their constitutional

duty of ensuring the legitimate exercise of public power,
cautioning that—
“
[t]he
separation required by the Constitution between the Legislature and
Executive, on the one hand, and the courts, on the other,
must be
upheld, otherwise the role of the courts as an independent arbiter
of issues involving the division of powers between
the various
spheres of government, and the legality of legislative and executive
action measured against the Bill of Rights and
other provisions of
the Constitution, will be undermined.”
30
Section
165 of the Constitution highlights the importance of judicial
independence. It vests judicial authority in the courts
and nowhere
else. Organs of state must not only refrain from interfering with
the courts, but they must also “assist
and protect the courts
to ensure the independence, impartiality, dignity, accessibility
and effectiveness of the courts.”
31
This Court has held that “[a]n essential part of the
separation of powers is that there be an independent judiciary.”
32
The
requirement of judicial independence is further underscored by the
oath or solemn affirmation taken by all judges when entering

office. Judges undertake to uphold and protect the Constitution and
administer justice “without fear, favour or prejudice”.
33
Judicial
independence is crucial to the courts for the fulfilment of their
constitutional role. It is “foundational to
and indispensable
for the discharge of the judicial function in a constitutional
democracy based on the rule of law.”
34
What is vital to judicial independence is that “the Judiciary
should enforce the law impartially and that it should function

independently of the Legislature and the Executive.”
35
The
constitutional and statutory provisions at the core of this matter
must be interpreted within the context of the Constitution
and its
values as a whole. International law is relevant. Section 233 of
the Constitution requires courts to draw guidance
from
international law in the interpretation of legislation.
36
In terms of section 39(1),
37
international law must and foreign law may be considered in the
interpretation of the Bill of Rights.
Judicial
independence in a democracy is recognised internationally. The
international community has subscribed to basic principles
of
judicial independence through a number of international legal
instruments. These include the United Nations Basic Principles
on
the Independence of the Judiciary,
38
which state that “[t]he independence of the judiciary shall
be guaranteed by the State and enshrined in the Constitution
or the
law of the country.”
39
The international standards acknowledge that guaranteed tenure and
conditions of service, adequately secured by law,
40
are amongst the conditions necessary to secure and promote the
independence of judges.
On
our continent, the Principles and Guidelines on the Right to a Fair
Trial and Legal Assistance in Africa recognise judicial

independence as a general principle applicable to all legal
proceedings.
41
The document includes a number of attributes that form the content
of the principle, including a transparent and accountable

appointment process,
42
security of tenure
43
and other conditions of service that are prescribed and guaranteed
by law.
44
Similar principles have been adopted in other regions of the
world.
45
The
principles of the rule of law, the separation of powers and
judicial independence, underscored by international law, are

indispensable cornerstones of our constitutional democracy.
The issues
The
central issue that arises for determination is whether section 8(a)
of the Act is consistent with section 176(1) of the
Constitution.
That enquiry, in turn, requires us to determine:
whether
section 8(a) of the Act delegates the power to extend to the
President; if so, whether delegation is permitted by section
176(1)
of the Constitution; and, if so, whether the delegation was validly
done;
whether
section 176(1) authorises a differentiation of terms of office of
judges of the Constitutional Court;
if
section 8(a) is constitutionally valid, whether the President is
obliged to consult the JSC and political parties, before
granting
an extension; and
the
appropriate remedy and the costs order.
Delegation
The
applicants impugn the constitutional validity of section 8(a) of
the Act on at least three separate grounds. However, on
one ground
they make common cause. That is that section 8(a) is invalid
because it violates the provisions of section 176(1)
of the
Constitution. This is so, they contend, because its provisions are
an impermissible delegation of the legislative power
of Parliament
to extend the term of office of a Constitutional Court judge to the
President.
The
applicants contend that, from the language employed by section
176(1), only Parliament is vested with the power to extend
the term
of office of a Constitutional Court judge and that, in the absence
of express or implied power to delegate to another
authority,
Parliament may not do so.
The
applicants also contend that there are a number of textual and
contextual indicators in section 176(1) that show that the
power to
extend the term of service of judges of this Court may not be
delegated. They draw attention to the words “Act
of
Parliament extends the term of office” and make the
submission that this is a plain textual indicator that Parliament,

and not any other body, may extend a Constitutional Court judge’s
term of office. Thus, whilst section 176(1) of the
Constitution
vests the power to extend the term of office of judges of this
Court in Parliament, section 8(a) of the Act purports
to delegate
that power, they submit, impermissibly to the President.
The
President and the Minister argue that section 8(a) does not purport
to delegate the power to extend the term of the Chief
Justice to
the President. In the President’s argument “section 8
qualifies under the exception as an Extension
by Act of Parliament
as intended in Section 176” and that “[t]he power of
Parliament to extend the term of office
of a Constitutional Court
judge, clearly included the power to prescribe that such extension
is to be determined by the President”
(footnote omitted).
Thus, they argue, section 8(a) confers on the President merely the
discretion to enable him to “meet
contingencies”. That
discretion entails implementing “an extension of the term of
office of the Chief Justice . . . by

determining the period of extension and seeking the Chief Justice’s
assent which is a
sine qua non
[pre-requisite] of such
extension.”
In
essence their contention is that section 8(a) is part of an Act of
Parliament that gives effect to section 176(1) of the
Constitution.
Through it Parliament in effect extends the term of office of the
Chief Justice and merely authorises the President
to implement the
extension. The delegation, to implement section 176(1) of the
Constitution, permits the President to decide:
whether to extend
the term of office of a Chief Justice; if so, to determine the
period of extension; and to seek the consent
of the incumbent.
This, they say, is a permissible delegation, not of legislative
power but, of a discretion to implement an
extension already made
by an Act of Parliament.
The
President and the Minister contend that this Presidential
discretion to implement the extension is permissible and consistent

with the constitutional framework. In this regard, the President
contends that section 174(3) of the Constitution vests in
the
President the power to appoint a Chief Justice. An extension of the
term of office or, as the President puts it, “an
effective
re-appointment of the Chief Justice” without the President’s
participation, would frustrate his power
to appoint a Chief
Justice. Additionally, the President submits that individual
personal appointments to State offices are
not usually effected by
Acts of Parliament. Thus the section 8(a) arrangement is an obvious
mechanism for Parliament to resort
to because whether the term of
office of a particular Chief Justice is to be extended ordinarily
would be capable of sensible
answer only at the time of his or her
retirement. The decision must be made, they argue, when the
“exigency is imminent”.
The
President further contends that the provisions of section 8(a) do
not erode judicial independence because this Court sits
as a
college of eleven judges and decision-making depends on a quorum of
eight judges. Implicit in this argument is that the
judicial
conduct or perceived conduct of a single judge cannot erode
judicial independence. The President also argues that
the extension
of office of the Chief Justice may occur once only and for a
specific period. The President says this means that
there can be no
further extension as an inducement to decisions in favour of the
Executive. He submits further that the rationale
for limiting the
terms of office is to encourage renewal of this Court’s
jurisprudence by weeding out “old wood”.
This object
will not be frustrated by section 8(a) of the Act, they argue,
because the extension of the term of the Chief Justice
relates to
only one member of the Court and is made necessary because there
are a number of important functions performed by
the Chief Justice,
other than judicial decision-making, which require continuity.
It
seems to us the first question to be resolved is whether the plain
wording of the empowering provision of section 176(1)
of the
Constitution requires that an Act of Parliament extend the term of
office of a Constitutional Court judge. That the
respondents
readily concede. The concession is properly made. As we have
already stated, their argument is rather that Parliament
has by
enacting section 8(a) extended the term of office of the Chief
Justice and, that under section 8(a), the President merely
takes an
executive decision to implement the legislation. The second
question is whether the Constitution permits Parliament
to delegate
its power to extend a Constitutional Court judge’s, including
the Chief Justice’s, term of service.
The third question is
whether section 8(a) constitutes lawful delegation or not.
Does section 8(a) delegate?
Section
8(a) states that a Chief Justice who becomes eligible for discharge
from active service may continue to perform active
service as a
Chief Justice. However, that would happen only if the President
decides so. The extension would be for an undefined
period set by
him provided it does not go beyond a date on which the Chief
Justice attains the age of 75 years. Section 8(a)
does not in its
terms purport to delegate to the President any form of legislative
power. It does not require the President
to extend the term of
office by making subordinate legislation in terms of an Act in
Parliament as envisaged in section 239
of the Constitution.
46
What it does is confer on the President an executive discretion to
decide whether to request a Chief Justice to continue to
perform
active service and, if he or she agrees, to set the period of the
extension. The term of office cannot be extended
unless the
President decides so and the Chief Justice accedes to the request.
The period of the extension too is in the exclusive
discretion of
the President and is unfettered in the sense that he is not
required to consult.
Thus
section 8(a) confers a significant and wide discretion on the
President, as reflected in the President’s own understanding,

that he could choose between appointing a new Chief Justice or
extending the incumbent’s term. In any event, in its
purported delegation, Parliament has not sought to furnish any, let
alone adequate, guidelines for the exercise of the discretion
by
the President.
47
It
seems self-evident that section 8(a) does not in itself extend the
term of office of a Chief Justice. The provision clearly
grants the
President an executive discretion to extend or not to extend the
term of office of a Chief Justice who is approaching
the end of his
or her term. In this, Parliament has delegated its power to the
President and in doing so granted him an executive
discretion
whether to extend the term of office or not. The contention that
the President merely takes an executive step to
implement the
extension granted by an Act of Parliament cannot be sustained.
There is no doubt that, as section 8(a) stands,
Parliament has
surrendered its legislative power in favour of an executive
election whether to extend the term of an incumbent
or not.
Is
this a permissible delegation?
This
Court has frequently recognised that the Constitution sometimes
permits Parliament to delegate its legislative powers and
sometimes
does not.
48
Shortly after the advent of our constitutional democracy, in
Executive Council I
,
49
Chaskalson P made plain:
“
In a
modern State detailed provisions are often required for the purpose
of implementing and regulating laws and Parliament cannot
be
expected to deal with all such matters itself. There is nothing in
the Constitution which prohibits Parliament from delegating

subordinate regulatory authority to other bodies. The power to do so
is necessary for effective law-making. It is implicit in
the power
to make laws for the country and I have no doubt that under our
Constitution Parliament can pass legislation delegating
such
legislative functions to other bodies. There is, however, a
difference between delegating authority to make subordinate

legislation within the framework of a statute under which the
delegation is made, and assigning plenary legislative power to

another body . . . .”
In
any given case, the question whether Parliament is entitled to
delegate must depend on whether the Constitution permits the

delegation. This is so because the authority of Parliament to make
laws, and so too to delegate that function, is subject to
the
Constitution. Thus whether Parliament may delegate its law-making
power or regulatory authority is a matter of constitutional

interpretation dependent, in most part, on the language and context
of the empowering constitutional provision.
50
In
Chapter 4, the Constitution provides that the legislative authority
of the national sphere of government is vested in Parliament
and
sets out the reach of that authority.
51
In other chapters too, the Constitution confers legislative
authority by using a variety of expressions. In Chapter 8, which

regulates courts and the administration of justice, it confers
legislative power on Parliament by resorting to various phrases

such as “through legislative and other measures”,
52
“by an Act of Parliament”,
53
“in terms of an Act of Parliament”,
54
“national legislation . . . must”,
55
“by national legislation”
56
and “national legislation may”.
57
Confronted
by a similar enquiry whether the Constitution had authorised a
delegation of legislative powers, albeit in relation
to another
chapter of the Constitution, yet also concerning the extension of a
term of office, in
Executive Council II,
Ngcobo J observed:
“
The
Constitution uses a range of expressions when it confers legislative
power upon the national Legislature in Chapter 7. Sometimes
it
states that ‘national legislation must’; at other times
it states that something will be dealt with ‘as
determined by
national legislation’; and at other times it uses the
formulation ‘national legislation may’.
Where one of the
first two formulations is used, it seems to me to be a strong
indication that the legislative power may not
be delegated by the
Legislature, although this will of course also depend upon
context.”
58
There
are indeed a number of textual and contextual indicators that
section 176(1) of the Constitution does not empower Parliament
to
delegate the power to extend the term of service of a judge of this
Court. The words “Act of Parliament extends”
require
that Parliament must take the legally significant step of extending
the term of active service of a judge of this Court.
The
extension by the President does not qualify as an Act of Parliament
as required. It does not bear the specific features
of an Act of
Parliament, such as originating from a Bill that was assented to
and signed by the President.
59
The extension is made through an executive decision of the
President. Section 176(1) explicitly refers to an Act of Parliament

extending the term. That is a strong indication that the
legislative power may not be delegated by the Legislature.
This
indication is strengthened when one considers the wording of
section 176(1) against that employed in section 176(2) of
the
Constitution. That section states that other judges, that is judges
who are not Constitutional Court judges, hold office
until they are
discharged from active service “in terms of an Act of
Parliament.” There has been a deliberate differentiation
in
the wording, requiring direct action by Parliament in section
176(1) and a framework for action in section 176(2). Had it
been
contemplated that the power in section 176(1) be delegable, it is
highly probable that the wording of section 176(2) would
have been
used.
The
respondents drew our attention to the fact that the debate on and
the adoption of the constitutional amendment to section
176 and
sections 3, 4 and 8(a) of the Act occurred simultaneously. From
this they urged us to hold that section 8(a) is consistent
with
section 176(1), because Parliament was open-eyed in passing both.
This contention cannot be supported because the fact
that the two
provisions were enacted at the same time is not relevant in
assessing whether particular legislation is compatible
with its
empowering provision within the Constitution. The contention is
faulty for yet another reason. It implies that the
way in which
Parliament understood the constitutional amendment that it approved
is binding on the manner in which this Court
must interpret the
amendment. It cannot be so. Even if it were possible to arrive at
this result, we are obliged to determine
objectively the meaning of
the constitutional provision irrespective of the meaning as
perceived by Parliament.
60
Beyond
the textual indicators, important considerations that flow from the
scheme of our Constitution also point to this conclusion.
The first
of these relates to the nature and extent of the delegation.
61
The primary reason for delegation is to ensure that the legislature
is not overwhelmed by the need to determine minor regulatory

details. Thus, delegation relieves Parliament from dealing with
detailed provisions that are often required for the purpose
of
implementing and regulating laws. As Chaskalson P observed in
Executive Council I
, delegation “is necessary for
effective law-making.”
62
However, the Court properly draws a distinction between delegation
to make subordinate legislation within the framework of
an
empowering statute and “assigning plenary legislative powers
to another body.”
63
Section 8(a) does not delegate the determination of mere minor
detail to the Executive, but shifts all of the power granted
by
section 176(1) from Parliament to the Executive. The provision
usurps the legislative power granted only to Parliament and

therefore constitutes an unlawful delegation.
It
would have been an easy matter for Parliament to regulate the term
of office of a Constitutional Court judge without being
overwhelmed
by the necessity to determine minor regulatory detail. Instead it
chose to delegate all its legislative power in
this regard to the
President.
It
is indeed so that section 174(3) of the Constitution vests the
power to appoint the Chief Justice in the President subject
to a
requirement to consult. The first respondent’s argument, that
because the President has the power to appoint the
Chief Justice he
or she ought to be involved in the extension of the Chief Justice’s
term, cannot be sustained. All that
section 176(1) of the
Constitution does is to vest the power to extend the term of a
Constitutional Court judge in Parliament.
It is not concerned with
the power to appoint the Chief Justice under section 174(3) of the
Constitution. These are separate
powers.
Where
the doctrine of parliamentary sovereignty governs, Parliament may
delegate as much power as it chooses. In a constitutional

democracy, Parliament may not ordinarily delegate its essential
legislative functions.
64
The power to extend the term of a Constitutional Court judge goes
to the core of the tenure of the judicial office, judicial

independence and the separation of powers. The term or extension of
the office of the highest judicial officer is a matter
of great
moment in our constitutional democracy. Up until the 2001 amendment
to section 176(1) of the Constitution, the term
of office of judges
of this Court was regulated exclusively by the Constitution. The
2001 amendment requires an Act of Parliament
to extend the term of
office. It requires Parliament itself to set the term of office.
Relying on section 176(1) of the Constitution,
Parliament extended
the term of office of all judges of this Court under sections 3 and
4 of the Act.
65
However, under section 8(a) Parliament chose to delegate that power
to the President.
Another
important consideration in deciding whether section 8(a) is
constitutionally compliant is the constitutional imperative
of
judicial independence. This Court is the highest court in all
constitutional matters. The independence of its judges is
given
vigorous protection by means of detailed and specific provisions
regulating their appointment.
66
The Chief Justice is at the pinnacle of the judiciary and thus the
protection of his or her independence is just as important.
It
is so that section 176(1) of the Constitution creates an exception
to the requirement that a term of a Constitutional Court
judge is
fixed. That authority, however, vests in Parliament and nowhere
else. It is notable that section 176(1) does not merely
bestow a
legislative power, but by doing so also marks out Parliament’s
significant role in the separation of powers
and protection of
judicial independence. The nature of this power cannot be
overlooked, and the Constitution’s delegation
to Parliament
must be restrictively construed to realise that protection.
67
Accordingly,
section 8(a) violates the principle of judicial independence. This
kind of open-ended discretion may raise a reasonable
apprehension
or perception that the independence of the Chief Justice and by
corollary the judiciary may be undermined by external
interference
of the Executive.
68
The truth may be different, but it matters not. What matters is
that the judiciary must be seen to be free from external

interference.
69
In
all the circumstances, we conclude that the Constitution determines
that a Constitutional Court judge holds office for a
non-renewable
term, “except where an Act of Parliament extends the term of
office of a Constitutional Court judge.”
It is only by an Act
of Parliament that an extension may occur. The provisions of
section 8(a) amount to an impermissible delegation
and are invalid
because they are inconsistent with the provisions of section 176(1)
of the Constitution. Any steps taken or
decision made pursuant to
the provisions of section 8(a) of the Act is inconsistent with the
Constitution and equally invalid.
Does section 176(1) permit differentiation of terms of office?
The
Court has concluded that there is a further reason why section 8(a)
is inconsistent with the Constitution. The Court considers
that the
provision makes a differentiation in regard to the term of “a
Constitutional Court judge” that the Constitution
does not
permit. Both the President and the Minister asked the Court to
determine this issue in addition to the delegation
point. Counsel
for the President asked the Court to do so for the guidance of the
President. Counsel for the Minister stated
that it was important
for the President, the Minister, the Cabinet and Parliament that
the Court determine whether this basis
of constitutional challenge
is sound.
The
President and the Minister, joined on this point by CALS and CASAC,
contend that section 176(1) permits the Chief Justice
to be singled
out when the parliamentary power to extend the term of office of a
Constitutional Court judge is exercised. By
contrast, FUL and JASA
urge that no differentiation is permitted between the Chief Justice
and the other members of the Court.
In
construing section 176(1) we do more than merely parse the words.
70
In giving meaning to its words we approach them against the
background of the structure of the Constitution as a whole, and
the
setting of section 176 within Chapter 8 of the Constitution, which
regulates courts and administration of justice. So approached,
the
supremacy of the Constitution and the rule of law, a founding value
of the Republic,
71
the separation of powers between the Legislature, Executive and
Judiciary, and the independence of the judiciary provide the

setting in which the meaning of the provision must be determined.
It
is well established on both foreign
72
and local authority
73
that a non-renewable term of office is a prime feature of
independence. Indeed, non-renewability is the bedrock of security

of tenure and a dyke against judicial favour in passing judgment.
Section 176(1) gives strong warrant to this principle in
providing
that a Constitutional Court judge holds office for a non-renewable
term. Non-renewability fosters public confidence
in the institution
of the judiciary as a whole, since its members function with
neither threat that their terms will not be
renewed nor any
inducement to seek to secure renewal.
As
our earlier exposition has indicated,
74
the fixed nature of a Constitutional Court judge’s term was
the main feature of the provision until it was substituted
by the
2001 amendment. That amendment added a provision that empowered
Parliament by statute to extend the term of office of
a
Constitutional Court judge. In its pre-amendment form, the
provision’s reference to “a Constitutional Court judge”

embraced every Constitutional Court judge. The question is whether
the power conferred on Parliament to extend by statute the
term of
office of “a Constitutional Court judge” empowered it
to single out a particular Constitutional Court judge.
In
approaching this question it must be borne in mind that the
extension of a term of office, particularly one conferred by
the
Executive or by Parliament, may be seen as a benefit. The judge or
judges upon whom the benefit is conferred may be seen
as favoured
by it. While it is true, as counsel for the President emphasised,
that the possibility of far-fetched perceptions
should not dominate
the interpretive process,
75
it is not unreasonable for the public to assume that extension may
operate as a favour that may influence those judges seeking
it. The
power of extension in section 176(1) must therefore, on general
principle, be construed so far as possible to minimise
the risk
that its conferral could be seen as impairing the precious-won
institutional attribute of impartiality and the public
confidence
that goes with it.
In
conferring the power on the President to extend the term of office
of “a Constitutional Court judge”, section
8(a) limits
the beneficiary of the conferral to the Chief Justice alone. The
question is whether this is compatible with section
176(1) in its
setting in Chapter 8, understood against the broader background of
the Constitution.
In
our view, the singling out of the Chief Justice, alone amongst the
members of this Court, is incompatible with section 176(1).
It is
indeed so that the Constitution itself creates the office of the
Chief Justice and Deputy Chief Justice and to this extent
singles
them out from the other members of the Court. The Constitution
provides that this Court “consists of the Chief
Justice of
South Africa, the Deputy Chief Justice and nine other judges.”
76
What is more, the Constitution provides a special appointment
process by which the President as head of the national executive

appoints the Chief Justice and Deputy Chief Justice, after
consulting the JSC and the leaders of the parties represented in

the National Assembly.
77
These provisions establish the distinctive offices of Chief Justice
and Deputy Chief Justice, and confer special power on the
President
to appoint them after consultation. As indicated earlier,
78
the other judges of this Court are appointed by the President, also
after consultation, from a list the JSC provides
.
79
The
distinctive appointment process for the Chief Justice and Deputy
Chief Justice indicates the high importance of their offices.
It
signifies that their duties may require them to represent the
judiciary and to act on its behalf in dealings with the other
arms
of government. In addition to their judicial functions, they may be
called upon to perform ceremonial and administrative
duties.
Indeed, the Chief Justice and the Deputy Chief Justice are the most
senior judges in the judicial arm of government,
and their
distinctive manner of appointment reflects the fact that they may
be called upon to liaise and interact with the
Executive and
Parliament on behalf of the Judiciary.
Once
appointed, however, the Chief Justice and Deputy Chief Justice take
their place alongside nine other judges in constituting
the
membership of this Court. The Constitution provides that a matter
before this Court “must be heard by at least eight
judges”.
80
Here the Constitution makes no differentiation between the Chief
Justice, the Deputy Chief Justice and the other judges of
this
Court in how the quorum is constituted. The Chief Justice and
Deputy Chief Justice add to the tally of eight without contributing

more than their individual weight. Their high office and the
extra-judicial duties they may be called upon to perform add
nothing to the tally.
Nor
does their office count when this Court determines the cases and
the matters before it. Their views count and their voices
are heard
equally with the respect and authority accorded every member of
this Court.
The
same scheme appears from the power the Constitution affords the
President to appoint a woman or a man to be an acting judge
of this
Court if there is a vacancy or if a judge is absent.
81
The appointment must be made with the concurrence of the Chief
Justice, but there is no constitutional differentiation in the

provision for the vacancy or absence. The vacancy or absence of the
Chief Justice or Deputy Chief Justice counts in the same
way as the
vacancy or absence of any other judge of this Court for the purpose
of the presidential power to appoint an acting
judge to this Court.
These
provisions establish two contextual signifiers that assist in
clarifying the meaning of section 176(1). The first is that
when it
comes to the functioning of this Court as the highest court in
constitutional matters, there is no distinction among
the Chief
Justice, the Deputy Chief Justice and the nine other judges. The
Chief Justice is first among equals (
primus inter pares
),
82
but in the discharge of the Court’s judicial functions he is
no different from the other judges.
The
second illumination these provisions give is that where the
Constitution seeks to single out the Chief Justice and the Deputy

Chief Justice, it does so deliberately and plainly. It does so
solely in creating the offices of the Chief Justice and the
Deputy
Chief Justice, and in making special provision for the President to
appoint them. It does so nowhere else.
It
is so that both statute and the Constitution place special
obligations on the Chief Justice.
83
However, in the discharge of this Court’s constitutional duty
of adjudication, the Chief Justice serves as “a
Constitutional Court judge”. In making this Court the
guardian of the Constitution and the highest court in
constitutional
matters, the Constitution vested all eleven members
of the Court with the authority to decide the matters before it
without
affording additional weight or authority to those holding
the offices of Chief Justice and Deputy Chief Justice. For the
purpose
of adjudication, the Chief Justice is a judge of this Court
and a member of it, no different from the other judges.
It
is plain that the provision does not allow Parliament to single out
any individual Constitutional Court judge by name. On
this all the
parties before us were rightly agreed. It is also plain that no
individual may be singled out on the basis of
an irrelevant
individual characteristic or feature. This was common cause. It
follows that the term “a Constitutional
Court judge” in
section 176(1) does not permit singling out any one Constitutional
Court judge on the basis of his or
her individual identity or
position within the Court.
Does
holding the office of Chief Justice enable Parliament to single out
the office in permitting the President to extend the
term of
office, as section 8(a) currently does? In answering this question
two considerations must be borne in mind. The first,
as explained
earlier, is that the power of extension, where granted, must be
circumscribed carefully to the express terms of
the constitutional
authorisation. The power should not be over-amply interpreted,
since an extension may reasonably be seen
as a benefit.
The
second consideration is that the primary effect of extending the
term of office of a Constitutional Court judge is to confer

extended power to perform the judicial function of this Court. In
that, the Chief Justice and the Deputy Chief Justice are
no
different from the nine other judges of this Court. They are judges
first in performing their judicial duties and judges
only when the
power the Constitution creates to extend the term of office of a
Constitutional Court judge is considered.
A
signal feature of section 176(1) is that no mention is made of the
Chief Justice or Deputy Chief Justice. The power to extend
is
afforded indifferently in relation to “a Constitutional Court
judge”. That description embraces each and every

Constitutional Court judge, and singles out none of them.
Incumbency of the office of Chief Justice or Deputy Chief Justice

makes no difference and confers no special entitlement to
extension.
The
DGRU contends, novelly, that Parliament does not have any power to
extend the term of office of all Constitutional Court
judges
generally, or that of all present and future Chief Justices. It
has, the DGRU urges, only the power to extend the term
of office of
a specific judge or judges of the Constitutional Court, and the
legislation exercising the power section 176(1)
confers may apply
only to that specific judge or those judges. The DGRU concludes
that to exercise the power validly, Parliament
must pass a law
extending the term of office of the incumbent Chief Justice by name
only.
We
are not persuaded. The argument fails to interpret section 176(1)
against the background of the constitutional values that
are
essential to its understanding, in particular the need for fixed
terms of office. What is more, it attributes an atomised
and
individualised meaning to “a Constitutional Court judge”,
when the language and setting of the provision indicate
without
doubt that the phrase encompasses the members of this Court
collectively.
It
follows that in exercising the power to extend the term of office
of a Constitutional Court judge, Parliament may not single
out the
Chief Justice. The provision does not allow any member of the
category of Constitutional Court judge to be singled
out, whether
on the basis of individual characteristic, idiosyncratic feature or
the incumbency of office. Age is an indifferent
criterion that may
be applied in extending the term of office of a Constitutional
Court judge. Age is an attribute that everyone
attains. Previous
judicial service is another criterion that may be indifferently
applied to all the judges of this Court.
The Act provides that a
Constitutional Court judge whose 12-year term of office expires
before he or she has completed 15 years’
active service as a
judge must, subject to attaining the age of 75, serve for 15 years
in this Court.
84
In
effect, these provisions entail that to receive a full judicial
pension on retiring from this Court, a judge must have completed
at
least 15 years’ active service, whether in this Court or
other courts, subject only to attaining the age of 75, and
to a
minimum 12-year term in this Court.
85
Unlike
the criteria of age and service, the offices of Chief Justice and
Deputy Chief Justice are by definition singular and

person-specific. They can at any one time be filled respectively by
only one incumbent. Section 176(1) does not permit the
holders of
these offices to be singled out individually for extension by
virtue of their incumbency of office. For this purpose,
the holders
of these offices are merely judges of this Court. Their terms, if
they are to be extended, must be extended uniformly
with those of
the other members of the Court.
To
create a special category for the extension of the term of office
of the Chief Justice or Deputy Chief Justice would be in
each case
to single out one judge. It would be to single out a member of this
Court on the basis of incumbency of an office
that is irrelevant to
the delineation of the members of this Court in section 176(1).
This section 176(1) does not license.
Three
members of the Court agree with the conclusion that section 8(a) is
invalid on the basis of the differentiation it effects.
However,
they do not agree that section 176(1) never permits differentiation
on the basis of the office the Chief Justice holds.
In their view,
section 176(1) must be interpreted purposively in the light of the
language used, its constitutional and historical
context and the
imperative of judicial independence. So interpreted, the provision
may permit Parliament to extend the term
of office of the Chief
Justice. The condition is that the extension must be effected
through an Act of Parliament of general
application which
rationally pursues a legitimate governmental purpose. In particular
the measure must further judicial independence.
In
this case, not all these requirements have been fulfilled.
Understandably, given the power that section 8(a) purported to

confer on the President, the responding affidavits were directed at
justifying the President’s exercise of his discretion
under
the existing provision. They did not seek to provide a more general
rationale for an extension of the terms of office
of all Chief
Justices in the furtherance of judicial independence. Although the
provision is in an Act of Parliament, it is
capable of
individualised application and it is uncertain that it furthers
judicial independence. It follows, in the view of
these colleagues,
that the provision, in enabling the Chief Justice to be singled out
in these circumstances, fails to pass
constitutional muster.
Having
unanimously found that section 8(a) is on both grounds inconsistent
with the Constitution and invalid, next for determination
is the
appropriate remedy. It is not necessary in the circumstances to
decide whether the President was required to consult.
Remedy
When
deciding a constitutional matter, a court must declare any law or
conduct inconsistent with the Constitution invalid to
the extent of
its inconsistency and may also make any order that is just and
equitable, including one that limits the retrospective
effect of a
declaration of invalidity or suspends the declaration of invalidity
to allow the competent authority to correct
the defect.
86
In view of our finding that section 8(a) of the Act is
constitutionally invalid a declaration to that effect must follow.
There is no need to limit its retrospective effect.
The
only remaining issue is whether an order suspending the declaration
of invalidity should be made as contended for by the
President and
the Minister as well as the amici (NADEL and BLA).
The
competence to make a just and equitable order which may include an
order suspending the declaration of invalidity for any
period is a
wide one. Importantly, the precise circumstances of each case need
to be considered in order to determine how best
the values of the
Constitution can be promoted by an order that is just and
equitable.
87
There
are, however, two particular difficulties in the present matter
that add to the often complex evaluation of what just
and equitable
order to make. The first is the lack of particular facts and
circumstances that would justify an order suspending
the
declaration of invalidity. The second is that this judgment is
delivered before the purported extension of the Chief Justice’s

term would have taken effect on 15 August 2011. What we are in
effect asked to do is to render valid an extension that is invalid

and that has not yet come into effect.
In
relation to the first difficulty this Court has on a number of
occasions laid down guidelines on how and what kind of information

should be placed before the Court in order to enable an informed
decision to be made on the issue.
88
For example, in
Mistry
89
it was stated:
“
A
party wishing the Court to make such an order must provide it with
reliable information to justify it doing so. The requisite

information will necessarily depend for its detail on the nature of
the law in question and the character of the defect to be
corrected.
Yet, as a general rule, a government organ or other party wishing to
keep an unconstitutional provision alive should
at least indicate
the following: what the negative consequences for justice and good
government of an immediately operational
declaration of invalidity
would be; why other existing measures would not be an adequate
alternative stop-gap; what legislation
on the subject, if any, is in
the pipeline; and how much time would reasonably be required to
adopt corrective legislation. Parties
interested in opposing such an
order should be given an opportunity to motivate their opposition.”
It
is clear that the papers filed on behalf of the President and the
Minister do not meet these requirements. NADEL seeks to
address the
problem of lack of information by reference to the following. It
asserts: (a) the transformation of the judiciary
and of the manner
of administration of the court system is at a crucial stage of its
progress; (b) the transformation involves
a fundamental shift to
court-controlled administration of the judiciary under the auspices
of the Office of the Chief Justice;
(c) this will entrench the
institutional independence of the judiciary; (d) the Chief Justice
has been intimately and instrumentally
involved in managing this
complex task and as a result has “institutional memory”,
has established relationships
with those he is required to consult
and work with and has provided leadership in bringing the
transformation initiatives to
their current status; and (e) even
though new leadership will in time be able to continue, there will
inevitably be a delay
in advancing the transformation project.
In
relation to the difficulty of providing a temporary legal cloak to
what would have been a constitutionally invalid extension
of the
Chief Justice’s term of office, the Minister argues that a
declaration of invalidity without suspension will bring
into
disrepute the office of the Chief Justice because the President
will then have to decide on the appointment of a new Chief
Justice
in less than four weeks. NADEL argues that the administration of
justice would not reasonably be seen as being brought
into
disrepute by suspending the declaration for a short period in order
for the competent authority to take remedial action.
NADEL’s
counsel went as far, in oral argument, as to suggest that a failure
to suspend the invalidity would itself bring
the administration of
justice into disrepute, because it would be seen as denying the
will of Parliament to extend the term
of office of the Chief
Justice (and the right of the Chief Justice to the extension). This
was echoed in the Minister’s
submission that forcing the
President to make a decision on the appointment of a new Chief
Justice in a short time will reflect
badly on the administration of
justice.
Relying
on
Dawood
,
90
NADEL argued that although Parliament has begun the process of
passing an appropriate law of general application to amend the

impugned provision, the vagaries of parliamentary process and the
possibility that the constitutionality of the Bill will be

challenged strengthened the need for interim relief.
The
Minister supported the submissions by NADEL regarding relief.
BLA
takes a novel stance. It submitted that suspending the invalidity
in order for the defect to be remedied would give expression
to
notions of restorative justice in customary African jurisprudence.
It contended that a mistake has been made in good faith
by all
concerned and should be “forgiven”. It argued that the
term “tshwarelo” or “tshwarela”
is applied
in African jurisprudence, and is applied in “Lekgotla”
(African traditional courts), meaning “excusable”
or
“excuse” and translates to “erasing the wrong
permanently”.
The
counter to these arguments by FUL and JASA is that a finding of
constitutional invalidity, on the ground that all Constitutional

Court judges should be treated indifferently and that particular
differentiation for only the Chief Justice was not constitutionally

sanctioned, meant that the defect of individual extension of the
Chief Justice’s term could not be remedied. It was not
merely
a procedural matter. The temporary absence of a Chief Justice was
something that had happened in the past and any deleterious
effect
could be overcome in time. Nothing prevented the incumbent Chief
Justice from assisting his successor in overcoming
these problems.
The Chief Justice had no right to an extended term of office and
could not have expected to hold tenure under
an unlawful
legislative provision and executive decision. To suspend invalidity
would undermine the rule of law and independence
of the judiciary.
They argue also that there is no need for any interim relief
because the interests of justice are best served
by a final
decision on the merits.
This
judgment is delivered before the purported extension of the Chief
Justice’s term of office would have come into effect
on 15
August 2011. There is thus no need for an interim order pending
this judgment, as asked for by NADEL. What remains is
the issue of
the suspension of the order of invalidity.
The
suspension would relate to future consequences that, but for a
suspension order, would not eventuate. And there is no indication

of any material dislocation if the suspension order were not to be
granted. We have not been able to find an instance where
this Court
has made a suspension order in comparable circumstances, nor were
we referred to any. A suspension order under section
172(1)(b)
usually comes into play when the past implementation of invalid law
or conduct has already led to practical consequences.
Even in those
cases this Court has emphasised that the rule of law must never be
relinquished, but that the circumstances of
each case must be
examined in order to determine whether factual certainty requires
some amelioration of rigid legality.
91
It is difficult to envisage how the rule of law will be served in
this instance by protecting future constitutionally invalid

uncertainty.
The
reasoning and implication of this judgment is that individual
differentiation in relation to the extension of the term of
a
Constitutional Court judge is not constitutionally permissible. It
is not the province of this Court to decide what, if anything,
to
do about this. Granting an order suspending the declaration of
invalidity in the circumstances of this case, where proper

information providing the basis for an order was not forthcoming
from the responsible state organs and where the invalid extension

had not yet come into operation, would have been problematic even
if the defect was merely procedural. Where it is substantive
and
will require major rethinking and decision-making on the part of
government, the justification for an order suspending
the
declaration of invalidity is even weaker.
The
justification advanced for a suspension order related to
non-adjudicative responsibilities said to be intimately linked
to
the person of the Chief Justice. The judicial work of this Court
will not be affected by the temporary absence of a Chief
Justice
appointed in terms of the Constitution. The important advances
pioneered by the current Chief Justice in relation to
the
institutional transformation of the judiciary need not grind to a
halt. Presumably the government will not abandon its
co-operation
simply because the present Chief Justice may not immediately
continue in that position. There is nothing that
prevents the
incumbent Chief Justice from continuing to give his assistance
regarding those projects on a practical level to
any temporary or
future appointment to the office of Chief Justice. A suspension
order will perpetuate an unconstitutional
extension of the term of
office of the head of the judiciary. The interests of justice and
the rule of law demand certainty
on the issues before us. This view
is fortified by the President’s submission that the issues in
this case deserve finality
and clarity because their practical
implications are imminent.
We
conclude that an order suspending the declaration of invalidity is
not, in the circumstances, warranted.
Costs
The
applicants seek costs against the respondents jointly and severally
including the costs of two counsel. The applicants have
been
materially successful and are entitled to costs, including the
costs of two counsel.
92
Even though the matter is of fundamental importance it was not
factually complex and the legal issues were of a narrow compass.
It
thus does not justify an order for a third counsel, as asked for by
CALS and CASAC.
Order
In
the result the following order is made:
The
applications for direct access by Justice Alliance of South Africa
and Freedom Under Law are granted.
The
conditional joint application for direct access by the Centre for
Applied Legal Studies and Council for the Advancement
of the South
African Constitution is granted.
It
is declared that
section 8(a)
of the
Judges’ Remuneration and
Conditions of Employment Act 47 of 2001
is inconsistent with the
Constitution and invalid.
It
is declared that the decision of the President of the Republic of
South Africa to request the Chief Justice of South Africa
to
continue performing active service as Chief Justice in terms of
section 8(a)
of the
Judges’ Remuneration and Conditions of
Employment Act 47 of 2001
is inconsistent with the Constitution and
invalid and that the consequent extension of the term of office of
the Chief Justice
is of no force and effect.
The
President and the Minister for Justice and Constitutional
Development are ordered to pay the costs, including the costs
of
two counsel, of—
the
applicant, Justice Alliance of South Africa, in Case CCT 53/11;
the
applicant, Freedom Under Law, in Case CCT 54/11; and
the
applicants, Centre for Applied Legal Studies and Council for the
Advancement of the South African Constitution, in Case
CCT 62/11.
CORAM:
Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J,
Nkabinde J, Skweyiya J, Van der Westhuizen J and Yacoob
J.
For the Applicants:
For the
First Respondent:
For the
Second Respondent in CCT 53/11 and CCT 62/11 and the Third Respondent
in CCT 54/11:
For the
First Amicus Curiae:
For the
Second Amicus Curiae:
In CCT
53/11: Advocate A Katz SC and Advocate D Simonsz instructed by
Nortons Inc.
In CCT
54/11: Advocate JJ Gauntlett SC, Advocate M du Plessis and Advocate A
Coutsoudis instructed by Webber Wentzel.
In CCT
62/11: Advocate W Trengove SC, Advocate G Marcus SC, Advocate S
Budlender and Advocate N Mji instructed by CALS.
In CCT
62/11: Advocate V Maleka SC, Advocate G Budlender SC and Advocate T
Ngcukaitobi instructed by CALS.
Advocate
KJ Kemp SC and Advocate LK Olsen instructed by the State Attorney,
Johannesburg.
Advocate
MTK Moerane SC and Advocate M Sello instructed by the State Attorney,
Johannesburg.
Advocate G
Bizos SC and Advocate A Hassim instructed by SECTION27.
Advocate N
Matlala instructed by T.T. Hlapolosa Attorneys Inc.
1
Constitution
of the Republic of South Africa Amendment Act 34 of 2001 (2001
amendment).
2
47
of 2001.
3
Section
4 provides:
“
(1) A Constitutional Court
judge whose 12-year term of office as a Constitutional Court judge
expires before he or she has completed
15 years’ active
service must, subject to
subsection
(2)
, continue to perform active service as a Constitutional
Court judge to the date on which he or she completes a period of 15
years’
active service, whereupon he or she must be discharged
from active service as a Constitutional Court judge.
(2) A Constitutional Court judge who, on attaining the
age of 70 years, has not yet completed 15 years’ active
service,
must continue to perform active service as a Constitutional
Court judge to the date on which he or she completes a period of 15

years’ active service or attains the age of 75 years,
whichever occurs first, whereupon he or she must be discharged from

active service as a Constitutional Court judge.”
This
provision applied to the judges who were members of this Court at
the time of its enactment, including Chief Justice Chaskalson.
4
This
provision in substance re-enacted section 7A of the Judges’
Remuneration and Conditions of Employment Act 88 of 1989.
Section 7A
of that Act came into force on 7 July 1993, before the 1993
Constitution was adopted. Section 7A provided:
“
(1) A Chief Justice who has
been discharged from active service, except a Chief Justice who has
been discharged from active service
in terms of section 3(1)(b), (c)
or (d), may, at the request of the State President, from the date on
which he has been discharged
from active service, perform service as
Chief Justice of South Africa for a period determined by the State
President, which shall
not extend beyond the date on which such
Chief Justice attains the age of 75 years.
(2) A Chief Justice who performs service in terms of
subsection (1) shall monthly be paid such remuneration as the State
President
may determine.”
The
1993 amendment was occasioned by the controversial circumstances
under which Chief Justice Rabie agreed to stay on in office,
after
reaching retirement age, despite the absence of statutory warrant or
precedent for doing so. See Cameron “Nude monarchy:
the case
of South Africa’s judges” (1987) 3
South African
Journal on Human Rights
338 at 343-6.
5
The
Chief Justice was appointed to the office of a Constitutional Court
judge with effect from 15 August 1999. The Act makes no
provision
for the computation of time. The civilian method accordingly
applies. It follows that his term of office expires at
midnight on
14 August 2011. See
Ex parte Minister of Social Development and
Others
[2006] ZACC 3
;
2006 (4) SA 309
(CC);
2006 (5) BCLR 604
(CC) at paras 23-4. Compare also Devenish
Interpretation of
Statutes
(1 ed) (Juta, Cape Town 1992) at 246.
6
The
Chief Justice was appointed as a judge in the High Court in 1996.
7
The
extension was effected by Presidential Minute No. 139, signed by the
President and co-signed by the Minister Justice and Constitutional

Development (Minister).
8
An
association incorporated under section 21 of the Companies Act 61 of
1973.
9
On
23 June 2011.
10
Notices
of intention to oppose were to be filed by 27 June 2011 and
answering affidavits were to be filed by 4 July 2011.
11
On
24 June 2011.
12
The
hearing was set down for 18 July 2011 and argument had to be filed
by the applicants on or before Friday 8 July 2011 and by
those
respondents who were opposing on or before 14 July 2011.
13
On
11 July 2011.
14
On
13 July 2011.
15
On
14 July 2011.
16
B12
of 2011
17
On
the afternoon of 15 July 2011.
18
Section
38 of the Constitution provides:
“
Anyone listed in this section
has the right to approach a competent court, alleging that a right
in the Bill of Rights has been
infringed or threatened, and the
court may grant appropriate relief, including a declaration of
rights. The persons who may approach
a court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who
cannot act in their own name;
(c) anyone acting as a member of, or in the interest
of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its
members.”
19
Section
174(4) of the Constitution provides:
“
The other judges of the Constitutional Court are
appointed by the President, as head of the national executive, after
consulting
the Chief Justice and the leaders of parties represented
in the National Assembly, in accordance with the following
procedure:
The Judicial Service Commission must prepare a list of
nominees with three names more than the number of appointments to
be
made, and submit the list to the President.
The President may make appointments from the list, and
must advise the Judicial Service Commission, with reasons, if any
of
the nominees are unacceptable and any appointment remains to be
made.
The Judicial Service Commission must
supplement the list with further nominees and the President must
make the remaining appointments
from the supplemented list.”
20
For
the wording of section 176(1), see [2] above.
21
Id.
22
Id.
23
See
above n 1.
24
See
above n 3.
25
Section
1 of the Act defines “active service” as follows:
“‘
active service’
means any service performed as a Constitutional Court judge or judge
in a permanent capacity, irrespective
of whether or not such service
was performed prior to or after the date of commencement of this
Act, and includes any continuous
period—
of longer than 29 days of such service in an acting
capacity prior to assuming office as a Constitutional Court judge
or judge
in a permanent capacity if such service was performed
before the date of commencement of this Act; and
of such service in an acting capacity prior to assuming
office as a Constitutional Court judge or judge in a permanent
capacity
if such service was performed after the date of
commencement of this Act”.
26
For
the full wording of section 8(a), see [4] above.
27
Section
1 of the Constitution provides:
“
The Republic of South Africa
is one, sovereign, democratic state founded on the following values:
Human dignity, the achievement of equality and the
advancement of human rights and freedoms.
Non-racialism and non-sexism.
Supremacy of the constitution and the rule of law.
Universal adult suffrage, a national common voters
roll, regular elections and a multi-party system of democratic
government,
to ensure accountability, responsiveness and openness.”
28
Section
2 of the Constitution provides:
“
This Constitution is the
supreme law of the Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed
by it must be fulfilled.”
29
Ex
parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,

1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) (
Certification I
) at para 45.
30
South
African Association of Personal Injury Lawyers v Heath and Others
[2000] ZACC 22
;
2001 (1) SA 873
(CC);
2001 (1) BCLR 77
(CC) at para
26.
31
Section
165 of the Constitution provides:
“
(1) The judicial authority of
the Republic is vested in the courts.
(2) The courts are independent and subject only to the
Constitution and the law, which they must apply impartially and
without
fear, favour or prejudice.
(3) No person or organ of state may interfere with the
functioning of the courts.
(4) Organs of state, through legislative and other
measures, must assist and protect the courts to ensure the
independence, impartiality,
dignity, accessibility and effectiveness
of the courts.
(5) An order or decision issued by a court binds all
persons to whom and organs of state to which it applies.”
32
Certification
I
above n 29 at para 123.
33
Section
6(1) of Schedule 2 to the Constitution provides:
“
Each judge or acting judge,
before the Chief Justice or another judge designated by the Chief
Justice, must swear or affirm as
follows:
I, A.B., swear/solemnly affirm that, as a Judge of the
Constitutional Court/Supreme Court of Appeal/High Court/ E.F. Court,
I
will be faithful to the Republic of South Africa, will uphold and
protect the Constitution and the human rights entrenched in it,
and
will administer justice to all persons alike without fear, favour or
prejudice, in accordance with the Constitution and the
law.
(In the case of an oath: So help me God.)”
34
De
Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 59.
35
Certification
I
above n 29 at para 123.
36
Section
233 of the Constitution provides:
“
When interpreting any
legislation, every court must prefer any reasonable interpretation
of the legislation that is consistent
with international law over
any alternative interpretation that is inconsistent with
international law.”
37
Section
39(1) of the Constitution provides:
“
When interpreting the Bill of Rights, a court,
tribunal or forum—
must promote the values that
underlie an open and democratic society based on human dignity,
equality and freedom;
must consider international law; and
may consider foreign law.”
38
Adopted
by the Seventh United Nations Congress on the Prevention of Crime
and the Treatment of Offenders held at Milan from 26
August to 6
September 1985 and endorsed by United Nations General Assembly
Resolutions 40/32 (29 November 1985) and 40/146 (13
December 1985).
39
Id
at principle 1.
40
Id
at principles 11 and 12.
41
DOC/OS(XXX)247
at principle 4.
42
Id
at principle 4(h).
43
Id
at principle 4(l).
44
Id
at principle 4(m).
45
See,
for example, the European Charter on the statute for judges, adopted
by the member states of the Council of Europe (DAJ/DOC
(98) 23),
July 1998; Beijing Statement of Principles of the Independence of
the Judiciary in the LAWASIA Region, adopted by the
Chief Justices
and other judges of the LAWASIA region (Asia and the Pacific) in
1995 and 1997.
46
Section
239 of the Constitution provides:
“‘
national legislation’
includes—
subordinate legislation made in terms of an Act of
Parliament”.
47
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para
34;
Janse van Rensburg NO and Another v Minister of Trade and
Industry and Another NNO
[2000] ZACC 18
;
2001 (1) SA 29
(CC);
2000 (11) BCLR 1235
(CC) at para 25;
Dawood and Another v
Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and
Another v Minister of Home
Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000
(8) BCLR 837
(CC) at paras 47 and 54-5.
48
Executive
Council, Western Cape Legislature, and Others v President of the
Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA
877
(CC);
1995 (10) BCLR 1289
(CC) (
Executive Council I
) at
para 51. See also
AAA Investments (Pty) Ltd v Micro Finance
Regulatory Council and Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) at paras 49, 93 and 122-3;
In re
Constitutionality of the Mpumalanga Petitions Bill,
2000
[2001] ZACC 10
;
2002 (1) SA 447
(CC);
2001 (11) BCLR 1126
(CC) at
para 19;
Executive Council, Western Cape v Minister of Provincial
Affairs and Constitutional Development and Another; Executive
Council,
KwaZulu-Natal v President of the Republic of South Africa
and Others
[1999] ZACC 13
;
2000 (1) SA 661
(CC);
1999 (12) BCLR
1360
(CC) (
Executive Council II
) at paras 123-4.
49
Executive
Council I
above n 48 at para 51. Whilst this dictum related to
the interim Constitution, it has been held to apply with equal force
to
the Constitution. See
Executive Council II
above n 48 at
para 124.
50
Executive
Council II
above n 48 at para 124.
51
Sections
43 and 44 of the Constitution.
52
Section
165(4) of the Constitution.
53
Sections
166(c), 168(3)(c), 169(a)(ii) and (b) and 170 of the Constitution.
54
Sections
166(e) and 168(1) of the Constitution.
55
Sections
167(6), 172(2)(c) and 179(3) and (4) of the Constitution.
56
Section
179(7) of the Constitution.
57
Section
180 of the Constitution.
58
Above
n 48 at para 125.
59
Section
81 of the Constitution provides:
“
A Bill assented to and signed
by the President becomes an Act of Parliament, must be published
promptly, and takes effect when
published or on a date determined in
terms of the Act.”
60
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at paras 14-9.
61
Delegation
is the conferral of a power for a specific reason, often a pragmatic
grant of power to fill in the detail of a policy
laid down by
primary legislation. It is not power which has been transferred to
the final decision-maker, to be used as they
see fit, or alienated
by them in turn. See McHarg “What is Delegated Legislation?”
(2006)
Public Law
539
at 557.
62
Above
n 48 at para 51.
63
Id.
64
Id
at para 62.
65
For
the text of section 4 of the Act, see above n 3.
66
Section
174 of the Constitution.
67
See
Executive Council I
above n 48 at para 60; and compare
Bradley v Fisher
[1871] USSC 92
;
80 US 335
(1871) at 347;
R v Kirby and
Others; Ex Parte Boilermakers’ Society of Australia
[1956]
HCA 10
;
(1956) 94 CLR 254
at 275-9; Article 2 of the United Nations
Basic Principles on the Independence of the Judiciary above n 38;
Principles and Guidelines
on the Right to a Fair Trial and Legal
Assistance in Africa above n 41 at principle 4; International
Commission of Jurists “Section
6” of
International
Principles on the Independence and Accountability of Judges, Lawyers
and Prosecutors: Practitioners Guide No 1
(ICJ, Geneva 2007) at
51-4; McLachlin “Judicial Independence: A Functional
Perspective” in Andenas and Fairgrieve
(eds)
Tom Bingham
and the Transformation of the Law: A Liber Amicorum
(OUP, New
York 2009) at 273-6.
68
The
mechanisms considered to ensure the independence of the judiciary,
so it may be seen as free from the influence of the Executive,
can
be seen in the following:
R v Valente
[1985]
2 SCR 673
at 694-5;
R
v
Beauregard
[1986] 2 SCR 56
at 69-70;
United
States v. Hatter
[2001] USSC 33
;
532 US 557
(2001) at 567-8; Jackson “Packages
of Judicial Independence: The Selection and Tenure of Article III
Judges”
(2007) 95
Georgetown Law Journal
965
at 992-3;
McLachlin above n 67 at 276-81.
69
Van
Rooyen and Others v The State and Others (General Council of the Bar
of South Africa Intervening)
[2002] ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR 810
(CC) at para 32.
70
See
[20]-[40] above.
71
See
above n 27.
72
For
the position in other jurisdictions, see
Marbury
v Madison
[1803] USSC 16
;
5
US
137
(1803) at 138 and
Leblanc
v The Queen
2011
CMAC 2 at paras 38-9, 43-4 and 59.
73
Glenister
v President of the Republic of South Africa and Others [2011] ZACC
6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC)
at paras 222-3.
74
See
[2] above.
75
Van
Rooyen
above n 69 at para 34, citing
US
v Jordan
[1995] USCA5 798
;
49
F 3d
152
(5
th
Cir. 1995) at 156 and
In Re Mason
[1990] USCA7 924
;
916
F 2d 384
(
7
th
Cir.
1990) at 386
.
76
Section
167(1) of the Constitution.
77
For
full text of
Section 174(3) and (4), see [21]
and n 19
above respectively.
78
See
[23] above.
79
See
above n 19.
80
S
ection
167(2)
of the Constitution.
81
Section
175(1) of the Constitution
82
Compare
R v Reilly
[1999] 64 CRR (2d) 57 at 79 and
Gillespie v
Manitoba (Attorney General)
[2000] 185 DLR (4th) 214 at para 34;
74 CRR (2d) 129 at 141 where it is stated of a provision singling
out the Chief Justice and
his duties that—
“
it is directed solely at the
organization of the judges and business of the court. It gives the
Chief Justice responsibility for
the judicial functions of the
court, but adds nothing to his or the court’s jurisdiction. He
is the first and most important
judge, but the first among equals as
far as jurisdiction is concerned.”
83
See,
for example, the following sections of the Constitution: 51(1);
52(2); 64(4); 86(2) and (3); 110(1); 111(2); 128(2) and (3);
174(4);
175(1); 178(1)(a); Schedule 2, sections 1, 2, 3, 4(1), 5 and 6(1);
and Schedule 3, section 9. See also
sections 7(1)
and
8
(1) of the
South African Judicial Education Institute Act 14 of 2008
; sections
1 and 8 of the Judicial Service Commission Act 9 of 1994 (making the
Chief Justice the head of the JSC and the head
of the Judicial
Conduct Committee, which receives, considers and deals with
complaints against judges); and Government Gazette
33500 GN R 44, 3
September 2010 (Presidential Proclamation establishing the Office of
the Chief Justice).
84
For
the text of section 4 of the Act, see above n 3.
85
The
DGRU notes that a consequence of its argument, set out at [89]
above, is that the provisions of the Act that require all judges
of
this Court who have not yet completed 15 years’ active service
to do so before being discharged are invalid. No other
party
supports this position.
86
Section
172(1) of the Constitution provides:
“
When deciding a
constitutional matter within its power, a court—
must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of it
inconsistency;
and
may make any order that is just and equitable,
including—
an order limiting the retrospective effect of the
declaration of invalidity; and
an order suspending the declaration of invalidity for
any period and on any conditions, to allow the competent authority
to correct
the defect.”
87
Minister
of Home Affairs and Another v Fourie and Another (Doctors for Life
International and Others, Amici Curiae); Lesbian and
Gay Equality
Project and Others v Minister of Home Affairs and Others
[2005]
ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC) at para 135.
See also
Minister of Home Affairs v National Institute for Crime
Prevention and the Reintegration of Offenders (NICRO) and Others
[2004] ZACC 10
;
2005 (3) SA 280
(CC);
2004 (5) BCLR 445
(CC) at
paras 75-7.
88
See
Chief Lesapo v North West Agricultural Bank and Another
[1999]
ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC) at para 33;
S v Ntsele
[1997] ZACC 14
;
1997 (11) BCLR 1543
(CC) at para
13;
S v Mello
[1998] ZACC 7
;
1998 (3) SA 712
(CC);
1998 (7)
BCLR 908
(CC) at para 11;
S v Mbatha; S v Prinsloo
[1996]
ZACC 1
;
1996 (2) SA 464
(CC);
1996 (3) BCLR 293
(CC) at para 30;
S
v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 30. A court is not obliged to grant
suspension of a declaration of invalidity and that relief is not
there for the
asking. In
Minister of Justice v Ntuli
[1997]
ZACC 7
;
1997 (3) SA 772
(CC);
1997 (6) BCLR 677
(CC) at para 42,
this Court remarked:
“
It should not be assumed that
[this Court] will lightly grant the suspension of an order made by
it declaring a statutory provision
to be invalid and of no force and
effect . . . for the defect in the legislation to be cured.”
89
Mistry
v Interim Medical and Dental Council of South Africa
[1998] ZACC
10
;
1998 (4) SA 1127
(CC) at para 37;
1998 (8) BCLR 880
(CC) at para
30.
90
Dawood
above n 47. In our view, this case is clearly distinguishable from
Dawood
in which the defect in the impugned provisions lay in
the legislative omission because of its failure to provide guidance
to
the decision-maker whether to grant or refuse or extend a
temporary permit. This Court correctly held that the task of
determining
what guidance is required is primarily a task for the
Legislature and should be undertaken by it to cure the defect in
those
provisions. In this case, the defect is irremediable because
section 8(a) purports to entrust parliamentary power to the
President.
91
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others
[2010] ZACC 26
;
2011 (4) SA 113
(CC);
2011 (3) BCLR 229
(CC) at para 85.
92
As
far as costs are concerned, the general rule in litigation is that
the costs should follow the result. See
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para 43,
where this Court held that “the general rule for an award of
costs in constitutional litigation between
a private party and the
State, is that if the private party is successful, it should have
its costs paid by the State”.
See also
Campus
Law Clinic, University of KwaZulu-Natal v Standard Bank of South
Africa Ltd and Another
[2006] ZACC 5
;
2006 (6) SA 103
(CC);
2006 (6) BCLR 669
(CC) at para 28.