Constitutional Court decides to stop using retired judges
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.