On Monday 18 July 2011, the Constitutional Court heard three applications for direct access regarding the purported extension, by the President of the Republic of South Africa, of the term of office of the Chief Justice for an additional 5 year term. Chief Justice Ncgobo’s term was to end at midnight on 14 August 2011. The three applicants were Justice Alliance of South Africa (JASA), Freedom Under Law (FUL) together with Centre for Applied Legal Studies (CALS) and the Council for the Advancement of the South African Constitution (CASAC).

The applicants contended, cumulatively, that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act which President Zuma had used to extend the Chief Justice’s term of office was inconsistent with section 176(1) of the Constitution of the Republic of South Africa. Section 176(1) of the Constitution provides that only an Act of Parliament can extend the term of a constitutional judge which meant President Zuma acted beyond his powers.

The Chief Justice indicated that he would abide by the decision of the Constitutional Court and was not present at the proceedings. The first and second respondents, the President and the Minister for Justice and Constitutional Development respectively, insisted that the President had extended the term of office of the Chief Justice in terms of a law of general application which was consistent with the Constitution.

Prior to the Constitutional Court delivering judgment, Chief Justice Sandile Ngcobo informed the President, on 27 July 2011, that he had withdrawn his acceptance of the extension of his term in office. The Chief Justice indicated that he had taken the decision in order to protect the integrity of the Office of the Chief Justice and furthermore that it was undesirable for a Chief Justice to be a party in litigation involving the question of whether or not he or she should continue to hold office.

The Constitutional Court handed down its judgment this morning in terms of which section 8(a) of the Judges’ Remuneration and Conditions of Employment Act was held to be unconstitutional and, accordingly that the purported extension of the Chief Justice’s term was invalid.

Nortons Incorporated represented JASA, the first applicant in the proceedings.

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Anthony Norton – 011 666 7561 or 011 666 7560.
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Anthony Norton at anthony@nortonsinc.com.