UNIVERSITY OF CAPE TOWN

Faculty of Law

Tenure of Judges of the Constitutional Court: A Discussion Document

Contents
Introduction
Hugh Corder, Francois du Bois, Christina Murray 1

Useful URLs 3

Judicial Power, Independence and Accountability: What’s the Fuss?
Hugh Corder 4

Response to Memorandum of Judges of the TPD and WLD
Judge Arthur Chaskalson 7

Submission on the proposed amendment of Section 176 of the Constitution
Francois du Bois 9

Viva Chaskalson Amendment
Mail & Guardian editorial, 17 August 2001 22

Response to Mail & Guardian editorial
Christina Murray 23

Introduction
South Africa’s Constitution is widely admired, both for its formal sophistication and its substantive goals. Its terms were hammered out over a five-year period of intense and exhaustive negotiations, in two separate series of meetings – the first produced the interim Constitution of 1993, the other culminated in the final Constitution of 1996. In a sense, however, the Constitution is the product of decades, perhaps centuries, of struggle and conflict between different groups. It expresses the lessons we have learnt from that bitter past, and gives institutional shape to our hopes for the future. This is exemplified by the presence of a Bill of Rights that is enforceable by a judiciary whose independence is ensured as far as it is possible to do so.

Constitutions are, by definition, meant to endure. They provide a framework and standards against which the legality of government (and often private) conduct is ultimately measured by the courts. For this reason their amendment has consequences that reach further than that of ordinary legislation. Frequent changes to the Constitution create uncertainty and diminish the status of the instrument, and this is why a special legislative process is typically required – perhaps an unusually large majority of the legislature, a referendum, or periods of notice in time. On the other hand, change must not be so difficult as to frustrate a legitimate, widely supported change of policy by a popularly elected parliamentary majority.

In the case of South Africa, it can be argued that the recent adoption of the Constitution consequent on such a thorough process of negotiation (including certification by the Constitutional Court) urges all of us to take special care when constitutional amendments are proposed. Of course, there may be circumstances that have arisen since 1996 that were unforeseen and that need to be accommodated. In addition, some of the provisions adopted may need to be refined in the light of the experience of government since then. A proposed amendment must, however, satisfy a number of procedural safeguards, including a notice period of at least 30 days, the submission to Parliament of any written comments received from the public or the provincial legislatures, and obtaining the support of at least a two-thirds majority in the National Assembly. In addition, in many circumstances, the support of at least six of the provinces in the National Council of Provinces must also be obtained. These are all designed to ensure that special care is indeed taken. More specifically, they express a constitutional commitment to participation by an informed citizenry in decisions affecting the terms on which our society is governed.

This is the context into which the Constitution of the Republic of South Africa Amendment Bill 2001 was introduced in mid-July. It contains a range of proposed amendments to the Constitution, some non-contentious. Clause 15 seeks to change the tenure of Constitutional Court judges so that the conditions thereof can be altered by ordinary parliamentary majority through an Act of Parliament. Currently such changes require the special process attendant on a Constitutional amendment. The procedural safeguards mentioned above appear to have been followed to the letter, although the Memorandum accompanying the Bill merely summarised the proposed amendment and failed to explain the reasons behind it. But more is needed to satisfy the constitutional ideal of informed public participation than formal compliance with rules.

True, clause 15 has drawn comment in the media and the legal profession: Many High Court judges are opposed to this change, as are many politicians and legal commentators. Equally, much editorial comment in the media has supported the change. Unfortunately, many of the positions taken have personalised the issue, letting the spotlight fall on the position of Justice Chaskalson, the President of the Constitutional Court. After the publication of some critical comments in a national daily newspaper, Justice Chaskalson issued a statement clarifying some of the background and motivation for the change. This followed reports of arguments in opposition to the amendment emanating from all the judges of the Transvaal High Court, countered also by a strong endorsement of the proposal by the editor of the Mail & Guardian.

There is a real risk that the thrust of the public debate thus far may obscure the most important aspects of the proposed amendment. The judges who sit on the Constitutional Court are entrusted with the power and responsibility to develop and maintain the fabric of our constitutional democracy. The terms under which they hold office is therefore a matter of constitutional principle that must be discussed without regard to personalities. This document has been produced and circulated in order to stimulate such a discussion, in the light of the call by the Justice Portfolio Committee of Parliament for responses from the public.

The authors of the three pieces are all members of the Faculty of Law at the University of Cape Town. Francois du Bois, who teaches Foundations of South African Law, Comparative Law, and Jurisprudence, makes a careful detailed analysis of the shortcomings of the proposed amendment. Christina Murray (Professor of Constitutional Law) and Hugh Corder (Professor of Public Law) have written more polemical articles, intended for the ‘op-ed’ pages of newspapers. For the sake of better context, Justice Chaskalson’s statement precedes Du Bois’ article, and Murray’s article is preceded by the Mail and Guardian editorial to which it responds.

It is hoped that this collection of documents will enhance public understanding of the important issues at stake.

Hugh Corder
Francois du Bois
Christina Murray
10 September 2001
(contact e-mail: [email protected])

Useful URLs
‘Changes proposed for constitutional judges’ Business Day 19 July 2001. http://www.bday.co.za

‘Judges-for-life plan opposed’ Business Day 13 August 2001. http://www.bday.co.za

Memorandum of the Judges of the Transvaal Provincial Division and the Witwatersrand Local Division. http://www.suntimes.co.za/business/legal/2001/08/19/carmel02.asp

Response to the Memorandum of the Judges of the Transvaal Provincial Division and the Witwatersrand Local Division by Judge Arthur Chaskalson. http://www.suntimes.co.za/business/legal/2001/08/19/carmel03.asp

Statement by the Ministry for Justice and Constitutional Development. http://www.suntimes.co.za/business/legal/2001/08/26/carmel02.asp

‘Viva Chaskalson Amendment’, Mail & Guardian editorial, 17 August 2001.
http://www.mg.co.za/mg/archive/2001aug/features/17aug-editorial.html

Judicial Power, Independence and Accountability: What’s the Fuss?
Hugh Corder, Dean & Professor of Public Law, University of Cape Town

More than seven years into our brave commitment to an extraordinary model of democratic constitutionalism, South Africans are growing accustomed to the novel prominence given to lawyers and the courts in government. The media focus daily on challenges to the constitutionality of rules of law, governmental conduct and private conduct, as well as the endless stream of criminal trials. The judiciary naturally plays a leading role in interpreting and enforcing the law, including the Constitution, and no court is more powerful than the Constitutional Court. In line with the role played by top courts, the eleven members of our Constitutional Court collectively wield ultimate legal power under our Constitution. Once they have spoken on a matter, there is no further appeal to a higher body: Only Parliament, in its legitimate role under the Constitution, may ‘overrule’ such a judgement, by means of constitutional amendment, following special procedures.

The position of constitutional judges in such a governmental hierarchy means that they wield great political power, and bear an extremely onerous burden of responsibility. Uneasy lie the heads which wear the crown: They must be both formally (by virtue of constitutional protection) and in essence and outlook fiercely independent, yet sensitive enough to acknowledge their accountability to the constitutional and political systems that they serve. The members of a constitutional court must somehow strike a balance between fidelity to a constitution and constructive criticism of the other branches of government, always recognising that their ultimate safeguard as an institution relies on the legitimacy or confidence with which the electorate regard them. Such judges occupy a unique position in government.

Writers of constitutions and political negotiators have known all this for centuries. Many mechanisms and conventions have been developed for the appointment and security of tenure of constitutional judges, to ensure both accountability and independence. With regard to tenure, many of the older systems, led by the US Supreme Court, appointed judges for life, only introducing a retirement age (usually between 70 and 75 years) during the last 30 years or so. Another tradition was pioneered by the French, who prefer a limited term of office (of nine years), regardless of the age at which a judge is appointed. It is the latter model that has proved most attractive since the middle of the twentieth century, as increasing numbers of countries have formally adopted constitutional review as the basis of government, particularly after the demise of colonialism and communism. Thus we see that constitutional judges are appointed for a fixed, usually non-renewable term of office (usually between nine and twelve years) in the following countries: Italy, Portugal, Poland, Germany, Spain, Venezuela, the Czech Republic, Angola, Cameroon, Morocco, Slovakia, Hungary, Bulgaria, Romania, Lithuania, Slovenia, and so on.

Those who negotiated and drafted the South African Constitution (both in 1993 and 1995/96) knew of these options, their strengths and weaknesses. On both occasions, after due deliberation, the majority favoured the limited term, non-renewable option, first for seven years (in the interim Constitution), and finally for twelve years, and a retirement age of 70 years. These provisions apply only to the Constitutional Court, in recognition of its supreme authority, and not to the other courts.

This choice, a product of the times, constitutes a healthy blend of the old and the new: The necessity for constant renewal and the possibility of appointing relatively young judges (in their late 30s and early 40s) without the danger of being saddled with them in office for 30 or more years, out of touch with realities in the community, and the influence of the political majority in Parliament (through its role in the appointment process) being limited in time. Even allowing for one party remaining dominant in government over a lengthy period, policy priorities will inevitably shift: An ossified, obstructionist Constitutional Court majority would render democracy a disservice in such circumstances.

Most observers would agree that even in the difficult moments through which our nascent democracy has passed, the Constitutional Court has acted admirably, blending sensitivity with forthright criticism, at all times demonstrating its independence, yet showing an awareness of its accountability to the people through the Constitution. Several of its judgements are cited as examples of the way to proceed in other legal systems. Two of the eleven original appointees to the Court have already been replaced (as a result of the death of one and the ‘translation’ to another court of the other), and several more will reach retirement age over the next few years, before the remaining original appointees complete their 12-year terms in late 2006. A pattern of constant renewal in its ranks is thus ensured.

Why then the proposed constitutional amendment that has created some controversy of late? Why change the Constitution (a significant step, requiring special parliamentary procedures and majorities) to bring the terms of appointment of constitutional judges into line with those of all other judges? The draft Bill, as published, does not tell us much, except that section 176 of the Constitution ‘is substituted to enable Parliament to regulate the term of office and retirement age’ of constitutional judges. Such a change would allow a simple majority in Parliament, for example, to alter the retirement age and conditions of service of such judges, according to temporary shifts in policy.

In seeking to answer this question, another question must be asked: What does a former constitutional judge do when his or her term of office has ended? If aged 55, how easy will it be to secure another job? If aged 70, will a pension be available? Currently, High Court judges who retire (even at the age of 65 years) can claim a gratuity and a generous pension, provided that they have served 15 years on the Bench. Constitutional Court judges, on the other hand, cannot by definition qualify for such a pension, being limited to a maximum of 12 years in office. As a result, when appointed, it was agreed that constitutional judges would be compensated on the completion of their terms by the payment of a gratuity that at the time (in 1994) seemed handsome. It is clear that the erosion of the value of the currency and other factors have made this an unsatisfactory reward for the service rendered by such judges. This is particularly true of those judges who will not serve their full 12-year terms, having been appointed in their 60s.

This situation needs to be remedied, but does it require a potentially divisive constitutional amendment? The original gratuities were not provided for in the Constitution, they were executive arrangements. Surely they can be increased to take care of particular circumstances? Let me take this further: I would argue that in the light of the extreme importance of their role in government and the very small number of people involved, all former Constitutional Court judges should be entitled to the guarantee of a pension from the state, equivalent to that of a High Court judge. Those who secure other employment (and there must be many law firms, universities, corporations and other institutions who would snap them up!) would set off any earnings against that pension to some degree. Perhaps there should also be an appropriate interval (of a year or so) at the end of the judicial term of office, during which the full pension would be paid, before the former judge commences any new employment. This would avoid any possible perceptions of prejudice in favour of a future employer.

To put it simply: Judges of our Constitutional Court perform a special function; they have unusually onerous responsibilities; they should be protected and rewarded; they should serve a fixed term of office; and they should not have to be concerned about reappointment or their employment prospects after service. This can all be achieved in terms of the current Constitution: Why amend it?

16 August 2001

Comment on the memorandum by the judges of the TPD by Constitutional Court President, Judge Arthur Chaskalson
You have asked me for a response to the memorandum from the judges of the Transvaal High Court. This memorandum opposes the proposal to bring the tenure of the judges of the Constitutional Court into line with that of tenure of judges of the Supreme Court of Appeal and of the High Court.

As President of the Constitutional Court I have a personal as well as an institutional interest in this. For that reason I have not wanted to engage in the debate taking place in the media. However, as the memorandum prepared by the Transvaal judges has been made public, I wish to make my views known.

First, I want to make one thing absolutely clear. I support the proposed changes. My primary concern is for the institution and not for myself. If the changes are made I will have to decide whether I will be willing to remain in office for a short time, or retire when I turn 70 in November this year. In the light of what has happened, and the way the issues have been personalised in the media, it will be necessary to consider whether it would be better for me to retire rather than to stay on for two years as the Minister has asked me to do. My personal position should not, therefore, cloud the issue, which is one of principle.

The Bill of Rights lies at the heart of our new legal order. It is and must continue to be central to all aspects of our law. And all law has to be shaped consistently with its provisions. The Constitutional Court has a crucial role to play in this. It should be, and be seen to be, an integral part of the court system and not apart or on its periphery. Its judges should be, and be seen to be, part of a single judiciary, and not a breed apart, subject to weaker conditions of tenure and less favourable terms of employment than other judges are.

This is the position occupied by judges who exercise constitutional jurisdiction or enforce bills of rights in the highest courts of ‘common law’ countries such as the United Kingdom, the other countries of the Commonwealth and the United States of America, whose legal systems are similar to ours. In those of the ‘common law’ countries -- and there are many -- whose judges have power equivalent to that of the judges of our Constitutional Court, no distinction is made between the tenure of judges of the highest courts that shape the law and judges of the lower courts who are bound by their decisions.

Stability, continuity and coherence are of signal importance to the development of the law. They are of particular importance now as the new legal order is being established. In common law countries, law, once established, changes incrementally. Precedent is important and given greater weight than is the case in the civil law continental countries, where there are career judiciaries. There, constitutional courts function apart from the ordinary courts. Most of the constitutional judges are not part of career judiciaries but are drawn from the academic and political sectors to which they return after completing their terms. For instance a former President of the Constitutional Court in Germany was an academic, a cabinet minister in a state government, a member of the Constitutional Court, then President of the Federal Republic of Germany. That is not a career path followed by our judges.

I do not wish to say more now save to clarify one possible source of misperception in public reports and analyses so far. In South Africa the retiring age of judges is between 70 and 75 depending on their length of service. If they have served 15 years or more as a judge they retire at 70. If not, they can continue until they have served 15 years but not beyond age 75. It is in this sense that the expression ‘life tenure’ is used.

I will ask for the opportunity of giving evidence to the National Assembly’s Committee on Justice and Constitutional Affairs. I will deal fully then with my reasons for supporting the proposed amendments and explain why I disagree with the views of the Transvaal judges. That seems to me to be the appropriate place for this debate to take place.

Submission on the Constitution of the Republic of South Africa Amendment Bill, 2001:
Proposed amendment of Section 176

Francois du Bois
Senior Lecturer, Faculty of Law, University of Cape Town

Introduction

The proposed amendment would replace the current fixed and non-renewable term of 12 years of Constitutional Court judges, as well as the mandatory retirement age of 70, by a provision enabling Parliament to regulate, as is currently done in respect of other judges, the term of office and retirement age of Constitutional Court judges by means of an Act of Parliament.

This raises the following fundamental questions:

· Should tenure on the Constitutional Court be regulated by legislation?

· Should tenure on the Constitutional Court be identical to tenure on other superior Courts?

· Which aspects of the proposed amendments can be supported?

This memorandum addresses these questions in the order they have been posed.

Should tenure on the Constitutional Court be regulated by legislation?

The answer to this is ‘no’. The reasons are the following:

In granting the Constitutional Court the power to invalidate legislation, the Constitution makes it possible for conflict to arise between the Court and parliamentary majorities. For this reason it is widely recognised that judicial independence is best served by protecting judicial tenure from the wishes of parliamentary majorities. To subject the tenure of Constitutional Court judges to the powers of such majorities would threaten the independence as well as the legitimacy of the Constitutional Court. The amendment would, in contrast with the current position under section 176, enable a parliamentary majority to manipulate these judges’ terms of office in the event of a serious conflict between the Court and Parliament. This would make it possible for an ordinary parliamentary majority to remove a Bench whose decisions it finds politically unacceptable without having to comply with the impeachment procedures safeguarded in the Constitution. The proposed amendment will therefore weaken the constitutional protection of the Constitutional Court’s independence.

It may also spark public doubts about whether Constitutional Court judges are ‘truly’ independent: A decision to uphold controversial legislation might well meet with a cynical reaction. It is self-evident that a court adjudicating a dispute in which one of the sides is able to lengthen or shorten the terms of office of its members will appear to be vulnerable to influence by that side.

The importance of these consequences is enhanced by the possible consequences of the proposed repeal of the fixed term limit of Constitutional Court judges. As is further explained below (3.2.1), this will increase the risk of conflict between the Court and Parliament. Hence, the effect of the proposed amendment would be to remove an important support of judicial independence and legitimacy at the very same time as it would be increasing their need for protection.

It is vital to note that the Constitutional Court is in this respect in a unique position when compared to the High Courts and Supreme Court of Appeal. The Constitutional Court alone has, by virtue of sections 167(5) and 172(2)(a) of the Constitution, the final say over the constitutionality of legislation, and also enjoys exclusive jurisdiction over certain other matters in terms of section 167(4). This means, crucially, that it is only judges of the Constitutional Court who have to make decisions that can prevent a parliamentary majority from having its way. This creates a special need to protect the independence and public legitimacy of Constitutional Court judges specifically. The present wording of section 176 recognises and gives effect to this.

For these reasons the constitutional ideal of an independent judiciary, and public confidence in the administration of justice, require that the present position be maintained: While the period of service of a Bench that does not have a final say in constitutional matters may properly be regulated by statute, it is imperative that tenure on the Constitutional Court Bench be regulated in the Constitution itself. The special procedures that must be complied with in order to amend the Constitution provide an indispensable safeguard for judicial independence and legitimacy.

Should tenure on the Constitutional Court be identical to tenure on other superior Courts?

Whether or not the tenure of Constitutional Court judges is regulated in the Constitution itself, the question of whether their term of office should be the same as that of other judges must be addressed. There are two differences between Constitutional Court judges and the rest of the judiciary that deserve attention here: the retirement age, and the fixed term of office of Constitutional Court judges.

Retirement age. At present judges on the Constitutional Court must retire at the age of 70, whereas other judges can serve until 75. There is no good reason for this difference, and in this respect the tenure of Constitutional Court judges should be identical to that of other judges. However, this should be regulated in the Constitution itself, and it would be preferable if this were done in respect of all judges.

Fixed term of office. In line with the position in other countries that have a distinct Constitutional Court, particularly those that also have modern, recent constitutions, our Constitution distinguishes between the terms of office of Constitutional Court judges and those of the rest of the judiciary, subjecting only the former to a term fixed in the Constitution. The effect of the proposed amendment would be to remove this difference. Although the remarkably terse and uninformative memorandum accompanying the Bill does not indicate this, a Ministerial Statement by the Ministry of Justice dated 24 August 2001 makes it clear that this is one of the primary purposes of the proposed amendment. The following paragraphs examine the justifications that have been put forward for this change.

Equity among judges

According to the Ministerial Statement, one objective of the proposed amendments is that ‘Constitutional Court judges be placed on the same footing as their counterparts in the Supreme Court of Appeal and the High Courts when it comes to their tenure of office, remuneration and conditions of employment.’ There also appears to be a concern that current arrangements place judges who first entered judicial office through appointment to the Constitutional Court ‘at a distinct disadvantage when compared to their colleagues who walk into a job for the rest of their lives, albeit it at a lower level’ and who could return to the Bench in another court. These are important and valid concerns, and must be supported.

However, this justification for the amendment loses much of its force once it is borne in mind that appointees to the Constitutional Court freely accept their conditions of employment. There is also another, more fundamental, reason for rejecting this as a justification for amending the Constitution in the way proposed: It confuses what is good for the institution with what is good for the individuals who serve thereon, because it seeks to reform the former on the basis of the latter. These are two distinct matters: What is right to do in respect of judges does not tell us what is right to do in respect of the Constitutional Court, or any other court. As is explained below, it is possible to ensure equity among judges without repealing the fixed term limit for service on the Constitutional Court.

The reason for limiting the terms of office of judges on the Constitutional Court to 12 years has nothing to do with the individuals appointed to this Court, but derives from the specific power that the institution to which they are appointed wields. This is a unique and far-reaching power. Although other judges also adjudicate constitutional matters, it is those who sit on the Constitutional Court who have the last word in constitutional controversies (see 2.2 above). It is this finality of Constitutional Court decisions that makes this institution unlike the other courts. And it is this, too, that makes it important to ensure that its composition does not stand in the way of re-consideration and revision of what are typically ‘hard cases’ which do not have one simple uniquely ‘right answer’ that remains valid for all time. A major purpose of fixed-term tenure is to counter-balance the power exercised by this non-elected institution so as to ensure that it does not become a stumbling block to progress. This is crucial to ensuring its continued legitimacy, as well as the existence of a healthy relationship with the legislature and executive. A limited fixed term of office on this Court also supports the healthy operation of this institution by ensuring that no individual member of its Bench can attain such seniority as would either enable her/him to dominate it, or to lose touch with colleagues.

In fact, the desire to ensure that all judges are treated equally can be achieved without altering the character of the Constitutional Court as a fixed-term institution. The differential treatment of judges who serve on this Court can easily be remedied by permitting them to serve on other courts after the expiry of their term. If the Constitution were amended to make it clear that judges serving on the Constitutional Court may continue to occupy a judicial office after the expiry of the fixed term, then the concern that judges on this Court have weaker conditions of service than those on other courts would also fall away. The apparent discomfort in the Ministerial Statement with a situation where judges ‘have to go back to a High Court, a court lower in status than the Constitutional Court, where they will invariably have to consider the constitutionality of legislation which will have to be confirmed by the Constitutional Court’ is not, in my view, justified. This is, after all, currently the common experience of those who have enjoyed acting appointments to this Court and the Supreme Court of Appeal. It is also outweighed by the benefit of retaining expertise within the judiciary, and enabling it in this way to suffuse all of the higher courts. This might well turn out to be one of the best ways of ensuring that the Bill of Rights melds all of the law into one, and of promoting continuity.

The position of the Chief Justice

Specific concern is expressed about the position of the Chief Justice who, it is proposed, will in future be the Head of the Constitutional Court. It is certainly true that the Chief Justice should be, and should remain, a member of the highest Court, i.e. the Constitutional Court. Unlike other members of this Court, it would not be appropriate for the occupant of this particular office to return to other service in lower courts. However, contrary to the Ministerial Statement, this does not support the proposed amendment. Here, too, it is important to distinguish between what is appropriate for the institution and what is appropriate in respect of this particular office.

This can be done in one of two ways that would retain the fixed term principle. One possibility would be to replace the practice we inherited from our colonial and neo-colonial past in which a Chief Justice continues to occupy that office until retirement from active service, and to replace it with one which treats this office as revolving among senior judges for a fixed term. This would be the result if the present terms of section 176 were so amended as to enable members of the Constitutional Court Bench, including the Chief Justice, to continue in active judicial service after expiry of their term on this Court, but to tie this office to membership of the latter. This approach would find support in the Constitution’s commitment to move South Africa from a hierarchical past to a more egalitarian future, and would symbolise this commitment in a concrete way.

But this is not the only possibility. It is also possible to treat the tenure of the holder of this office separately from the tenure of other judges of the Constitutional Court. If the Constitution were to be amended so as to provide that the Chief Justice alone would hold office as a judge of the Constitutional Court for the fixed term or until retirement, whichever is the later, then it would be possible to meet this specific concern without simultaneously upsetting the careful balance in the Constitution between the powers of the Constitutional Court and of Parliament. Since the Constitutional Court decides cases by sitting en banc, it would then still be the case that the outcome of litigation before it would be in the hands of people sitting on this court for fixed terms.

Achieving a single, integrated judiciary: following other ‘common law’ countries.

The Ministerial Statement refers several times to the aim of having a ‘single judiciary’, and in this regard refers to ‘the position in other common law countries.’ This is also emphasised, and elaborated in somewhat further detail in the response provided by the President of the Constitutional Court to the Memorandum on the proposed changes by the TPD judges. In the latter it is said that:

The Constitutional Court … should be, and be seen to be, an integral part of the court system and not apart or on its periphery. Its judges should be, and be seen to be, part of a single judiciary, and not a breed apart, subject to weaker conditions of tenure and less favourable terms of employment than other judges are.

This is the position occupied by judges who exercise constitutional jurisdiction or enforce bills of rights in the highest courts of ‘common law’ countries such as the United Kingdom, the other countries of the Commonwealth and the United States of America, whose legal systems are similar to ours. In those of the ‘common law’ countries -- and there are many -- whose judges have power equivalent to that of the judges of our Constitutional Court, no distinction is made between the tenure of judges of the highest courts that shape the law and judges of the lower courts who are bound by their decisions.

There are a number of flaws in this justification for the proposed amendment:

It confuses tenure as a judge with membership of the Constitutional Court. This justification for the amendment would hold water only if fixed-term membership of the Constitutional Court necessarily meant limited tenure as a judge. As the Ministerial Statement points out, this is not at present true of those members of this Court who held judicial office upon their appointment thereto, and, as was pointed out above (3.2.1), it need not be true of the rest of its members either. As was shown there, it is not necessary to repeal the fixed term for membership of this Court in order to avoid a position in which its members are differentiated from the rest of the judiciary by being ‘subject to weaker conditions of tenure and less favourable terms of employment than other judges are.’

The proposed amendment is not the most effective way of achieving this objective. The consequence of repealing the fixed term will be that an appointee to the Constitutional Court will remain a member of that Court until her/his judicial term of office comes to an end. In contrast, retaining fixed-term membership of this Court, but allowing those who served thereon to continue in judicial office until a uniform retirement age has been reached, would reintegrate its members into the other Courts (see 3.2.1 above). This is much more likely to ensure that its members do not become ‘a breed apart’, that it is seen as staffed by ‘real judges’ and appears as well as functions as ‘an integral part of the court system.’ Indeed, it would not be far-fetched to think that the proposed amendment would achieve the opposite from this stated aim.

Even after the proposed amendment Constitutional Court judges will be, and should continue to be, subject to a somewhat different regime from other judges. The proposed amendment does not envisage that the procedure for appointment to the Constitutional Court Bench be replaced by that applicable to all other judges. This difference will therefore remain. The question inevitably arises why this difference should not also be thought to treat Constitutional Court judges as ‘a breed apart’ and not really ‘an integral part of the court system.’ If this difference does not offend against the ‘single judiciary’ principle, then why does the fixed term provision do so?

The answer is that neither of these two current features of the Constitution do so, because neither has any necessary connection with tenure as a judge. Both are really concerned, instead, with membership of the Constitutional Court. And they have the same rationale, namely the need to take account of the unique role of this Court in our constitutional dispensation.

Hence this justification for repealing the fixed term provision has little force, unless it is also proposed to abolish the special procedure for appointing judges to the Constitutional Court. These provisions stand or fall together. To repeal only one of them would create an anomaly where there is currently consistency. Moreover, if only the fixed term provision were to be abolished, cynics might be led to believe, as the press has already suggested, that the amendment is based less on principle than on expediency. At any rate, this justification is also based on the same failure to appreciate the distinction between tenure as a judge and membership of the Constitutional Court that was remarked on above.

In my view, the rationale that binds these two provisions together is a strong one, which, seen in the light of the availability of an alternative to this amendment, militates most strongly against the amendment. The fixed term for membership of the Constitutional Court should be retained if, and for the same reasons that, the special appointment procedure for Constitutional Court judges is maintained.

The appeal to the position in ‘other common law countries’ is circular and lacks substance. In both the Ministerial Statement and the Chaskalson Response, the proposal is presented as aimed at bringing South Africa in line with ‘common law’ countries because their legal systems are similar to ours, that is, because we also have a ‘common law’ system. This justification only has to be stated for its circularity to become obvious: If we did have such a system, the amendment would not have been needed.

The truth of the matter is that ever since the establishment of the Constitutional Court we have not had a true ‘common law system’. The creation of a specialised Constitutional Court with a Bench that is appointed by way of a special procedure has cut one of the links South Africa used to have with common law jurisdictions: the presence of a final superior court with general jurisdiction. Unlike the courts in the ‘common law’ countries referred to in the Chaskalson Response, the Constitutional Court does not have general jurisdiction, but has a restricted specialised jurisdiction like that of the German Constitutional Court. The Constitutional Court has explicitly recognised this feature of its jurisdiction as recently as in the Boesak and Carmichele decisions. In this respect we therefore do not have a ‘common law system’ and will not have one unless and until the Constitutional Court ceases to be what its name indicates, and is turned into a final court of general jurisdiction.

Moreover, the classification of South Africa as a ‘common law’ jurisdiction is, at least in the Chaskalson Response, based on a mistaken contrast between ‘common law’ and ‘civil law’ countries.

First, it is only if one limits oneself to superficial appearances that it can be thought credible to say that precedent is given greater weight in common law than in the civil law jurisdictions. Although this view was prevalent a generation or so ago, it is by now common cause among comparative lawyers that precedent-based reasoning also plays a vital role in civil law countries in ensuring stability, continuity and coherence. In some civil law countries, a glance at the law reports is enough to confirm this. This is particularly true of the decisions of the German Constitutional Court (the nearest equivalent to our own), whose decisions are not only cited and applied in the other courts, but which also refers to, relies on, follows, and sometimes distinguishes its own previous decisions. In these countries, as in common law jurisdictions, ‘law, once established, changes incrementally’.

Second, while it is true that the ‘ordinary’ judges in civil law countries are members of a career judiciary whereas judges in South Africa and common law countries are typically appointed only after a period in private practice, this contrast must not be overblown. A famous and distinguished American judge and legal writer, Richard Posner, recently argued in the Clarendon Lectures he presented at Oxford that even the English judiciary can increasingly be seen as a career judiciary, albeit that the judicial career starts comparatively late in life and not in the lowest courts. This is true also of South Africa where, as in England, judicial appointment is normally preceded by appointment as an acting judge, and judges in the highest courts are (mainly, in the case of the Constitutional Court) drawn from those with previous judicial experience. On the other hand it is not entirely accurate to say that in continental ‘civil law’ countries ‘constitutional courts function apart from ordinary courts’. Their decisions must be followed by the ‘ordinary courts’, and from time to time concern aspects of the ‘ordinary’ law applied by those courts.

At any rate, to the extent that there is a difference here, and South Africa falls in the ‘common law’ camp, this would support retention of the fixed term, rather than its abolition. This is so because, in the absence of a regular career path from young, very junior to older, senior judge, there is inevitably (and in my view often appropriately) a greater role to be played by broadly political factors in the career progression of ‘common law’ judges. This is obvious and well-known in respect of American judges in higher state and federal courts, is true of English judges in the light of the role played by a Cabinet Member, the Lord Chancellor, and is recognised and regulated in our own judicial appointment procedures. In reality, therefore, ‘common law’ judges fall somewhere on a spectrum in civil law countries between the ‘ordinary’ judges and their constitutional counterparts. This means that the reason ‘civil law’ countries have for distinguishing between members of ordinary courts and of constitutional courts may well also apply in South Africa. Indeed, in addition to section 176, other constitutional provisions also indicate that it does: a special procedure must be followed when judges are appointed to the Constitutional Court.

Third, the fact that none of our Constitutional Court judges has yet followed a career path similar to that of the former President of the German Constitutional Court referred to in the Chaskalson Response, is pure chance and is most likely due to no more than the relative youthfulness of this institution in South Africa. Nothing debars this from happening now, and the proposed amendment would not do so either. At any rate, it is not the possible previous or subsequent occupations of judges serving on the Constitutional Court that provides the rationale for the fixed term limit; it is rather their unique powers while they fulfil the function of the Court.

If the real concern is that these judges do not have non-judicial careers to return to after the expiry of their term on this Court, then this can be catered for by allowing them to continue serving as judges, albeit on other courts.

The appeal to the position in ‘other common law countries’ lacks weight. Even though there is no real substance in regarding South Africa as a ‘common law’ country in this context, it may nevertheless be felt that these leading jurisdictions provide a valuable precedent in this regard. That would be a mistake. There are good reasons for not following the precedent they have set.

First, as pointed out above, we differ from them in that our Constitutional Court has a limited, specialised jurisdiction. There is more to this point than merely ‘distinguishing a precedent’ in lawyerly fashion. This difference shows that we have chosen to learn lessons from their experience and that of other countries, and chosen not to follow them blindly. In particular, it shows that we, like other new democracies, chose to follow the more modern precedent of the German Constitutional Court, and to recognise the special role and powers that are exercised by a final court with constitutional jurisdiction. It shows that we have - and have given ourselves - the opportunity to recognise this role and these powers, and to structure this Court so as to reflect their character. The relevant common law jurisdictions, on the other hand, merely added the constitutional role and powers onto other, more general, and quite different functions.

Second, none of the common law jurisdictions had the options, knowledge and experience available to them that we now have. As pioneer, the United States had to make its choice blindly, and was unaware that it had a choice. Canada merely added a Charter of Rights and provisions empowering judicial review onto its existing constitutional structure. The same is true of the United Kingdom, where the European Convention for Human Rights was simply incorporated into the existing legal system. India merely followed the U.S. example.

Third, serious criticisms have been expressed within these ‘common law’ jurisdictions about the success of their model. In the United States, critics have pointed to the damaging effect very long service of individual judges has had on the efficient and harmonious operation of the Supreme Court, and to the crises that have been provoked when a Bench appointed in a different era failed to grasp the new socio-economic needs that governmental measures sought to address. Similar criticisms have been voiced in India. In Canada and in the United Kingdom, new appointment procedures were called for once their highest courts were granted constitutional review powers.

The present arrangements in our Constitution - a specialised final Constitutional Court, special procedures for appointment to its Bench and limited tenure thereon - make up a coherent system that is demonstrably better than the arrangement in these ‘common law’ countries. To change any one aspect of this would be a step backwards.

The need for continuity

Stability, continuity and coherence are offered as justification for the proposed amendment in both the Ministerial Statement and in the Chaskalson Response. There can be no doubt that these are, as the latter document states, ‘of signal importance to the development of the law’ especially ‘now as the new legal order is being established.’ This objective must be supported.

However, the proposed amendment will not promote this objective. While it will, of course, provide continuity for the individuals who currently sit on the Constitutional Court, it will not promote the stability, continuity and coherence of the Court itself, or of the law it applies. There are two reasons for this.

3.2.4.1 At present, two factors determine the extent and frequency of personnel change in this Court: the fixed term and the retirement age. By themselves, these factors do not prevent continuity of personnel on this Court. This is so, because it is the age at which a judge is appointed that determines how long she/he will serve on the Court: someone appointed at the age of 40 will serve for 12 years, while someone appointed at the age of 65 will serve for less. It is therefore the age of appointment to this Court, not the presence of the fixed term limit, which determines the degree of continuity of the Constitutional Court Bench.

This will remain so if the amendment is passed: continuity will still depend on the age of appointees to this Court. The amendment would not in itself alter the rate or frequency of change in its personnel. The amendment will therefore not ensure any greater continuity than there is now. All it will do is to enable some members of this Bench to serve for longer than is now the case. It is important to note that this in itself would not provide any greater continuity of the Court itself - there is nothing in the proposed amendment that would prevent such ‘longer serving’ judges from making up a small minority of Constitutional Court judges.

Admittedly, the amendment would mean that a somewhat smaller number of the individuals who at the moment serve on the Constitutional Court would have to be replaced at the same time than is currently the case. However, this is a one-off situation, due to the comparative newness of this institution and to the age profile of its Bench at the moment. Its recurrence can easily be prevented without the proposed amendment, by careful, responsible planning during the appointment of their successors, so as to ensure that the age profile of the Bench would bring about gradual renewal.

At any rate, the desire to prevent a large turnover upon the expiry of the fixed term for which the currently serving Constitutional Court judges were appointed, can easily be implemented without removing the fixed term requirement. All that needs to be done is to extend the fixed term to, say, 15 years. Although this is not ideal, this would ensure that its present members leave this Court gradually, and would make it more likely that that remains the case in future.

However, it must also be said that the fear that the continuity of the Court and constitutional law will be jeopardised by the simultaneous replacement of a number of the present incumbents is exaggerated. Apart from the matter discussed in the next paragraph, it is vital to bear in mind that a number of people have held appointments as Acting Judges of the Constitutional Court. There is therefore a pool of people with experience of service on this Court from which appointments can be made. Moreover, in contrast with the situation when Constitutional Court judges were first appointed in South Africa, there is now also a whole range of judges on other courts and of experienced lawyers who could be appointed to the Constitutional Court. The present members of this Court are not the only lawyers with experience and expertise in constitutional law, and are not the only judges to have adjudicated constitutional matters.

Continuity of courts and the law is not primarily a matter of personnel. It is rather, as the Chaskalson Response makes clear, a matter of precedent, of deciding cases within the framework of stability, continuity and coherence that is provided by an approach which maintains the fabric of principle that underlies earlier decisions. Our Constitutional Court's own practice reflects this. So too, does that of its nearest counterpart, the German Constitutional Court.

The importance of precedent, rather than personnel, can easily be seen. If the present judges of the Constitutional Court did not adhere to precedent, but decided each case afresh without regard for stability, continuity and coherence in constitutional law, then we would have no greater continuity in future if they remained on the Bench than if they were all replaced at once.

The fact that our current Constitutional Court judges have applied the doctrine of precedent and have carefully and consciously created a body of constitutional law precedents, means that we need not fear that their replacement will jeopardise continuity. This approach is now an entrenched part of our constitutional law that no conscientious successors will fail to apply. The laudable work of the current Constitutional Court Bench also leaves to its successors a framework of established precedents in the most vital areas of constitutional law that will ensure continuity. If one were to leave this out of account, and to think that their successors would be faced with tackling issues completely afresh, then one would be disregarding and discounting the important work that our present Constitutional Court judges have been engaged in.

Finally, the example of Germany's Constitutional Court not only shows that precedent is important, but also that it is capable of providing continuity where judges are appointed for fixed terms. Germany's constitutional law is no less stable and coherent than that of the United States, India, Canada or any other Commonwealth common law jurisdiction.

Consequently, the perception that the amendment would promote continuity more successfully than the present arrangement is based on the same fundamental mistake as that which underlies the other justifications offered in these two documents.

Attracting the best legal minds

The Ministerial Statement also justifies the proposed amendment by stating that ‘any perceived or actual impediment in the way of attracting the legal brains of the country for this Court needs to be avoided at all costs.’ Aside from the exaggeration in the phrase ‘at all costs’, which surely cannot have been intended to be taken seriously, this is a valid and weighty consideration, as is the wish to ensure continuity. However, like the latter, it does not justify the proposed amendment.

In the first place, it contradicts the continuity-justification and conflicts with the effect that the amendment would have if passed. The current occupants of the Constitutional Court Bench applied for and accepted their positions, in the full knowledge that a fixed term is applicable. By justifying the proposed amendment on the ground that the conditions under which these judges assumed office is an impediment to attracting the best legal minds in the country to this Court, it is implied that the Bench does not at the moment boast the best legal minds. If this were truly the case (which I do not believe it to be), then one would not wish to promote continuity or to propose an amendment which would have the effect of prolonging the tenure of present Constitutional Court judges. Consequently this justification does not in fact support the amendment proposed, but rather argues against it.

Second, it is pure speculation that the current arrangements are an impediment to attracting the best legal minds. There is no credible, verifiable factual evidence hereof available. Although some may have made statements to this effect, others have pointed to other factors that might limit enthusiasm for serving on the Bench, such as the level of remuneration of judges. We just do not know to what extent each of the several possible factors may inhibit the best legal minds from serving on the Bench, or how they interact. A mere unsupported belief cannot be thought to justify so fundamental a change to the Constitution as is being proposed, particularly when no-one seriously maintains that we do not at present already have the best legal minds on this Court.

Third, even if it were true that the current arrangements discouraged the best legal minds from serving on the Constitutional Court, this impediment can be removed without abolishing the fixed term of service on this Court. All that needs to be done is to provide that someone’s tenure as a judge does not automatically come to an end when her or his term on the Constitutional Court Bench expires. That would enable the judge to serve for the same length of time regardless of whether she or he is appointed to the Constitutional Court or another superior court.

4. Which aspects of the proposed amendments can be supported?

A uniform retirement age for all judges can be supported. However, this should be done by including all judges in the relevant provision, rather than by excising the retirement age of Constitutional Court judges from the Constitution.

Tenure on the Constitutional Court should not be regulated by legislation. This aspect of the proposed amendment can therefore not be supported.

Tenure on the Constitutional Court should not be identical to tenure on other superior courts. It should remain subject to a fixed term, with the possible exception of the Chief Justice. This aspect of the proposed amendment can therefore not be supported.

The proposed amendment will not promote the objectives that have been ascribed to it in the Ministerial Statement and Chaskalson Response. These objectives are not always consistent, and may be undermined by the amendment proposed. A more effective and efficient way of achieving the objectives of treating all judges equally, ensuring continuity, and attracting the best legal minds to the Constitutional Court, would be to uncouple tenure on the Constitutional Court from tenure as a judge, and to allow someone to continue serving as a judge after the expiry of her/his fixed term on this Court.

‘Viva Chaskalson amendment’ (Mail & Guardian Editorial, 17 August 2001)

Since its inception in 1994, the Constitutional Court has been an outstanding success. In a short period of time it has built up an enviable reputation in the international legal community. Its sober judgements have laid waste fears that the court would prove too sympathetic to the ruling party. Its independence and authority are now beyond question.

The court's success is in many ways attributable to the stewardship of its president, Arthur Chaskalson, who is due to retire after his 70th birthday in November. Chaskalson has now proposed amending the Constitution to allow Constitutional Court judges to stay on after 70. The proposal, which has become known as the ‘Chaskalson amendment’, would bring the judges into line with their South African brethren - and replace the current rule that they serve a non-renewable 12-year term and quit at 70. South African judges retire at 70, but can be asked to stay on until 75.

We would argue that, on balance, the ‘Chaskalson amendment’ is a necessary change to the Constitution - a change that could strengthen the court and entrench the continuity that is essential to the development of sound constitutional jurisprudence. It takes time for an 11-judge court to settle down and develop its philosophy. The current rules effectively mean clearing the court out after 12 years, which would undo such progress, undermining that crucial continuity. Furthermore there is a short supply of jurists able enough for the job. The new amendment allows those that there are to hang around longer. The downside is, of course, that the amendment could be used to entrench weak, pliant judges. But that is a risk worth taking.

In the short term, the amendment would also do the country an immense service by ensuring that Judge Chaskalson himself remains in place for a while longer.

In terms of another constitutional amendment, the president of the Constitutional Court will become the head of the judiciary, presiding over both the Supreme Court of Appeal in Bloemfontein - until now headed by the chief justice - and the Constitutional Court. If he stays, that will make Chaskalson the first incumbent of this new position - and provide a solution to government's quandary about how to fill it. There is a strong need for a black chief justice, but there are currently no obvious candidates. The rumour is that Dikgang Moseneke is being groomed for the top job, having quit business to become an acting judge.

What better interim solution than the first president of South Africa's Constitutional Court?

Response to Mail & Guardian editorial

Christina Murray
Professor of Constitutional Law, University of Cape Town

A proposed constitutional amendment currently highlighted by the media, including the Mail and Guardian, seeks to change the tenure provision for Constitutional Court judges from a fixed term of twelve years to a longer term established by legislation. The result would be to place Constitutional Court judges on a par with other judges and in effect extend the tenure of the existing judges - in one case from 12 to 32 years.

Until the Mail and Guardian editorial last week, few reasons had been given for the amendment. But, the reason explored most thoroughly in the editorial is the worst possible one for amending a constitution.

The amendment, the editorial states, ‘allows those that are there to hang around longer’ and ‘would do the country an immense service by ensuring that Judge Chaskalson himself remains in place for a while longer’. The editorial emphasises the role that Chaskalson, as President of the Court, has played in building the Court's success. Certainly, the South African Constitutional Court is well respected here and in other countries and it has established its reputation in a remarkably short time. Justice Chaskalson, himself a remarkable man, has contributed to this reputation in a significant way. But the personality of present incumbents of positions can never be a good reason to amend a constitution. And it does an injustice to Chaskalson to suggest that the amendment - which is attributed to him - is designed primarily to extend his tenure.

So, what reasons might there be for the amendment - and do they justify revisiting the decisions made after considerable debate of alternatives by the Constitutional Assembly in 1996?

The editorial suggests another reason: Longer tenure ‘could strengthen the court and entrench the continuity that is essential to the development of sound constitutional jurisprudence. It takes time for an 11-judge court to settle down and develop its philosophy. The current rules effectively mean clearing out the court after 12 years …’ This is simply nonsense. There have already been two new appointments to the court, and, under the current system, changes occur gradually as judges reach the retirement age of 70 and are replaced or as they reach the end of the 12-year term.

The suggestion that more time is needed for the court to ‘settle down and develop its philosophy’ is more complex. How does a court establish a philosophy? Partly through developing an understanding of the law that the country comes to share, and partly through the give and take of discussion among the judges. A court is not like a bridge partnership. It is not a monolithic body - as the number of dissenting judgements in the short life of our Constitutional Court demonstrates. The philosophy of a court is moulded by differing views of the meaning of the law and by the type of cases that come to it. Moreover, new judges do not come onto the bench ‘cold’. They come with an understanding of the existing philosophy of the court, ready to develop (or challenge) it. Already the Constitutional Court draws on new judges regularly. There is almost always an Acting Justice on the Court and Acting Justices usually write at least one judgement during their tenure - without, one assumes, undermining the developing constitutional philosophy. Certainly, new judges may take some time to get into the swing of things but there will be ten other judges holding the reins.

It is precisely through constant challenges to its philosophy from its members that a court remains alert to needs and open to new ideas. The gradual replacement of judges provides continuity; their regular replacement refreshes the court and prevents its stagnation.

There is one better reason for extending the tenure of the Court, but even this reason is dubious. It is generally thought that a longer tenure will increase the independence of judges. In the present situation it has been argued that younger members of the Court who complete their terms while far from the end of their working life might have their independence and impartiality impaired because they will need to search for new jobs as their term draws to an end. In essence, a conflict of interests is feared. But, again, this argument does a disservice to the present judges on the Constitutional Court. It exaggerates the problem. On an eleven strong bench the interests of one judge can hardly influence outcomes. And the present arrangement of paying a gratuity to judges at the end of their tenure ensures that none will suffer financially while choosing a new occupation.

Moreover, the argument based on the independence of the Court needs to be carefully weighed against other constitutional principles. The major argument for a fixed term for the Constitutional Court is based on the power wielded by Constitutional Court judges, a power that is markedly different from that of other judges because the Constitutional Court can overturn an Act of Parliament but only an amendment to the Constitution can overturn a decision of the Constitutional Court. The tension in democracies between decision making by a majority and the need for an umpire (like a Constitutional Court) to ensure that basic values are protected is always difficult to manage. In modern constitutional democracies a common part of the solution is to establish a court with supreme decision making power - but also to limit its tenure so that it is constantly refreshed and its decisions are constantly reopened for scrutiny. Why should this constitutional concern give way to a concern about independence that can be resolved in many other ways (as the many very successful fixed-term courts in Europe show us)? It is clear that this concern cannot give way to a perceived need to retain present incumbents.

There is yet another, less commonly expressed reason for limiting tenure. It is the need to have judges on the Constitutional Court who are closely attuned to the needs of the community. The Judicial Service Commission that helps select Constitutional Court judges is acutely aware of this. A recent JSC document about appropriate criteria for the selection of judges includes the question: ‘What experience does the candidate have in regard to the values and needs of the community?’ This criterion captures a notion that is part of our commitment to a representative bench. It is that rendering justice requires more than legal technique and technical knowledge. Judges breathe life into the law and in doing so they must make judgements about its purpose and the communities that it serves.

The entire proposal smacks of an attempt to fix something that ain’t broke - or, at best, to respond to short-term political concerns by a constitutional amendment that will long outlast the problem. The current government may like the idea of giving this court more power. Its political successors may not be as sanguine about the change.

One further concern about this amendment and those that accompany it: The two Constitutional Amendment Bills before Parliament propose five or six substantial changes to the Constitution in addition to the change to the tenure of Constitutional Court judges. The Department of Justice has followed constitutional requirements for amendments to the letter: The proposed amendments were published for public comment 30 days before their introduction into Parliament. But the Constitution intends proper discussion of proposed amendments. Thirty days and the couple of weeks given by the parliamentary committee for discussion is hardly appropriate for a battery of constitutional changes in a young country learning the basics of inclusive democratic decision-making.