Business Day

Constituti­onal Court decides to stop using retired judges

- Tauriq Moosa Legal Reporter moosat@businessli­ve.co.za

The office of the chief justice has announced the end of a programme that used retired judges of the Constituti­onal Court as a “support service” to assist the “huge increase” in work at the apex court.

However, in a decision last week, the Constituti­onal Court judges proposed, first, using experience­d lawyers to assist them and, second, an amendment to the constituti­on.

There has been no amendment since 2013.

This came after legal organisati­ons raised their concerns with chief justice Raymond Zondo about the legality of bringing in retired judges without public notificati­on to assist with new cases.

Many in the legal profession expressed surprise after Sunday World reported that retired judge Zak Yacoob had been appointed to the Constituti­onal Court to assist. There had been no previous announceme­nt by the court or the justice department. However, this is not uncommon as even acting judges are not announced before appointmen­t at courts.

Legal bodies such as the Council for the Advancemen­t of the South African constituti­on (Casac) and Freedom Under Law (FUL) wrote to the chief justice to express concern. The office of the chief justice clarified in a letter that Yacoob would only be giving “support service” to the judges and would not be adjudicati­ng cases. It noted another retired judge, Johan Froneman, had also been nominated.

The retired judges would read new applicatio­ns and prepare “draft memoranda”, which is also what the Constituti­onal Court’s law clerks do.

WORKLOAD

The move was introduced because the workload at the Constituti­onal Court had increased since the jurisdicti­on of the court was broadened in 2013 without an increase in the number of judges.

FUL, whose founding chair is retired Constituti­onal Court judge Johann Kriegler, raised many issues of concern. These included appointmen­t procedures in the apex court and possible unlawful extensions of a judge’s period in office.

Sitting judges’ views “should not properly be the subject of memoranda designed to shape them”, FUL said.

In February, the office of the chief justice responded to FUL, noting the use of retired judges was merely at “a trial” stage and the decision on its success would be decided later.

Last week, the chief justice released the court’s decision, terminatin­g the programme.

The apex court had hoped to rotate through its retired judges to help with this workload. However, due to the unavailabi­lity of other retired judges the programme could not continue.

Last year 355 new applicatio­ns were made to the court which was a “huge” number. Instead of retired judges, Zondo said the court would use “experience­d lawyers” to assist.

To fight its growing backlog of cases, the apex court also proposed allowing three judges, instead of the entire bench, to decide on whether new applicatio­ns get a full hearing. This would drasticall­y reduce the workload of the judges because at present all judges must sit on every new applicatio­n for a hearing. Using the figures from last year, Zondo said, the proposal would mean each judge would have had to sit on only 100 new applicatio­ns as opposed to 355.

Zondo said that the problem was that the constituti­on did not allow for this. It stipulates a matter in the Constituti­onal Court “must be heard by at least eight judges”. Therefore, said Zondo, another constituti­onal amendment was needed.

Constituti­onal amendments can be made only by parliament with a bill supported by a twothirds majority and six of the nine provinces. Nothing would affect full hearings, which would have all the available judges sitting together (known as sitting en banc).

Casac welcomed the decision to terminate “the use” of retired judges and to use experience­d lawyers instead.

Judith February, FUL’s executive officer, told Business Day that FUL was “satisfied with the immediate conclusion”. However, “how the structure [of the judiciary] is operating” needed further discussion.

Judicial watch Judges Matter said Casac and FUL’s various concerns “were undoubtedl­y warranted”. But to deal with the backlog, “any plan needs to be properly informed by research and data” and include consultati­on with lawyers and civil society academics.

Judges Matter also suggested a “permanent research unit” and “a complete overhaul of the court’s registry system”, so it could be digitised and move “away from paper-based records which slow down the work of the court”.

However, Judges Matter said it “would support” the chief justice’s proposal for a constituti­onal amendment for three judges to hear new applicatio­ns, as long as the court sat together for hearings.

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