The Cabinet has approved a controversial constitutional amendment that would see fixed, nonrenewable terms of office for judges of SA’s Constitutional Court abandoned.
The amendment — which seeks to align the terms of office of Constitutional Court judges with those of high court judges — could open the way for the top court to be loaded with politically compliant judges who could serve terms as long as 30 years.
A similar amendment proposed in 2001 was rejected by Parliament after opposition from the legal community.
The idea behind the current dispensation is to avoid a politically loaded court even if it means the expertise of relatively young judges would be lost to the court after serving their 12 years — as recently happened with the retirement of Judge Kate O’Regan, who is not yet 50 years old.
Constitutional Court judges’ terms were fixed at 12 years to ensure new life was continually being breathed into the court.
One of the key aims was to avoid having the top court loaded with politically compliant judges who would then serve for 20 or 30 years, as has arguably happened in the US Supreme Court.
After the way the Judicial Service Commission (JSC) was loaded with new appointments apparently sympathetic to President , the new amendments have raised some fears that the same could happen to the Constitutional Court.
Last month, the Cabinet announced that the Superior Courts Bill and its parallel 19th Constitutional Amendment Bill had been approved. With some fanfare it was announced that the differences between the government and the judiciary had largely been resolved.
When the bills first landed in Parliament in 2005 they were roundly condemned as harming the independence of the judiciary. About 10 days ago the Cabinet announced two small additions had been made to the bills, one an amendment to clause 176 of the constitution, which regulates the terms of office of judges.
The reintroduction of the provisions is certain to once again provoke fierce opposition, particularly when Parliament holds public hearings on the bills.
Chief Justice Sandile Ngcobo, who turns 58 next March, would have to retire next year after serving his nonrenewable 12-year term. Should Parliament approve this amendment, he would be able to serve until he turns 70, as high court judges do.
A legal academic, who declined to be named, said the move was retrogressive as the reasons for the nonrenewable term had not changed. Another leader of the justice community said “this is a serious step back”.
Democratic Alliance justice spokeswoman Dene Smuts said the late changes raised a question about the timing of a new idea introduced with the 19th amendment: “…That the judges of this court should no longer be appointed for 12 years only, but for the same term as any other judge, that is until they are 70 or are discharged from service”.
Constitutional law expert Prof Pierre de Vos said that when the constitution was drafted there were long debates about the term to be served by Constitutional Court judges. “It was pointed out then that SA should avoid the US example, where Supreme Court justices serve for life or until they fall over or retire. Sometimes they serve for 30 years or more, thus ensuring some influence for the president who appointed them many years after that president had retired or even died.
“Because judges of the Constitutional Court have enormous powers, and because the exercise of these powers has political ramifications, it was felt the Constitutional Court judges, unlike high court and Supreme Court of Appeal judges, should serve a fixed term of no more than 15 years.”
This followed the model of the German constitution and the constitutions of many other modern democracies, De Vos said.
He said the reasoning was that Constitutional Court judges exercised power with strong political ramifications.
Unlike high court judges, they are not in effect appointed by the JSC but are selected by the president from a list prepared by the commission. The president appoints the chief justice and deputy without having to follow the commission’s advice.
“By giving the president a decisive role in the appointment of the judges of our highest court, the constitution recognises that this court plays a more political role than other courts,” De Vos said.