Chief Justice Raymond Zondo is this week expected to review his decision to appoint retired justices, including controversial Justice Zak Yacoob, at the Constitutional Court to assist with applications for leave to appeal.
This follows criticism from several NGOs and questions about the constitutionality of his decision.
The Office of the Chief Justice had earlier said that the decision to appoint retired justices at the apex court was meant to be on a trial basis, and if it did not work as planned, the initiative could be discontinued.
Justice Zondo had said the retired justices would be fulfilling a support service to the justices of the Constitutional Court because of their huge workload since the expansion of the court’s jurisdiction.
He said that the retired judges would not take part in the adjudication of any matter.
“At any one time there would be two retired justices rendering this support service to the serving justices and they would render the service for a few months and then another two retired justices would be called in.”
Justice Yacoob and retired justice Johan Froneman would be volunteering this service.
Justice Zondo said the retired judges were requested to render a service to the serving justices of the Constitutional Court “in terms of section 7 of the Judges’ Remuneration and Conditions of Employment Act read with paragraph (d) of the definition of the word ‘service’ in section 1 of that act”.
The service entailed reading new applications and then preparing a memorandum in respect of each application.
However, the Council for the Advancement of the South African Constitution (Casac), Freedom Under Law (FUL) and the National Association of Democratic Lawyers (Nadel) wrote to Justice Zondo and raised red flags, saying that deciding applications for leave to appeal was central to the court’s judicial function and was the preserve of its serving justices.
Casac wrote to Justice Zondo twice to highlight their concerns over retired justices carrying out judicial and not administrative functions.
The organisation said retired justices had served a non-renewable 12-year term at the Constitutional Court, and their reappointment was in violation of the Constitution.
Casac said it was also concerned about the issue of seniority, as the opinion of retired justices could hold more sway than if it came from a law clerk.
Nadel said it understood the demands placed on the court’s justices and their possible need for additional judicial hands, but justices served a non-renewal term. It said the proposal was unconstitutional and had the potential to create a perception that the sitting justices were not fit for the office they held.
FUL in its letter to Justice Zondo said granting leave to appeal was regulated by important court procedures. It said appointing retired justices to advise on the outcome of pending cases may amount to a circumvention of the constraints the Constitution had imposed, and that the work was not administrative but part of the judicial function vested in the 11 justices and them alone.
The Black Lawyers Association issued a statement saying, “Our preliminary view is that the function they will be doing is judicial work, which they cannot do beyond the 12 years they served in the ConCourt”.
The Mercury