National Association of Democratic Lawyers
Human Rights Research and Advocacy Project

SUBMISSION: THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL, 2000

INTRODUCTION
The proposed amendments to the Constitution of the Republic of South Africa Act No. 108 of 1996, (the Constitution) as contained in the Constitution of the Republic of South Africa Amendment Bill, 2000 (the Bill) that is currently before the Parliamentary Portfolio Committee on Justice and Constitutional Development (the Committee) for consideration, raise a number of important issues. This submission briefly sets out Nadel’s position and proposals in respect of such issues and is based on the conclusions flowing from discussions and debates among members of Nadel’s National Executive Committee (NEC) during various teleconferences. There have been time and resource constraints in the preparation of this submission. At this stage it represents a preliminary view only, as it has not been possible, given the short notice of this matter coming before the Committee, to canvass the issues widely even among all the members of Nadel’s NEC. We thus respectfully draw the committee’s attention to the fact that the views expressed herein are not final and Nadel reserves the right to alter them in due course once it has consulted its membership more widely and to expand on the positions in verbal presentation.

AMENDMENT TO SECTION 176 – Tenure of Constitutional Court Judges
In arriving at the present formulation that is found in the present Constitution and that mirrors that which was agreed to in the Interim Constitution, both Codesa and the Constitutional Assembly opted for the principle of a limited tenure for Constitutional Court judges. This is currently enshrined in section 176. It is this limited tenure that is now the major bone of contention arising from the Bill.

Section 176(1) reads as follows:
A Constitutional Court judge is appointed for a non-renewable term of 12 years, but must retire at the age of 70.

A Constitutional Court judge is thus appointed for a maximum non-renewable term of twelve years. This is different to the tenure of other judges whose tenure is governed by Judges Remuneration and Conditions of Employment Act 88 of 1989, which provides for tenure until retirement, disability or dismissal with the proviso that if a judge has not served a full fifteen years as at the date of reaching their seventieth birthday, a further maximum of five years may be served.

If the proposed amendment is adopted it will have the effect of removing the current limit on tenure of constitutional court judges and thus the distinction between the tenure of constitutional court judges and all other judges.

The amendment will have the effect that the tenure of constitutional court judges as is the case with other judges of the High Court and Supreme Court of Appeal will be decided by national legislation, presumably the Judges Remuneration and Conditions of Employment Act 88 of 1989 duly amended to make the appropriate changes so as to bring all judges within its ambit in a consistent manner.

· ARGUMENTS FOR AND AGAINST
Nadel has had the benefit of considering some of the documentation already presented before the Committee. In the interests of time and brevity we do not propose repeating the arguments made therein. Suffice it to say that in our respectful view there are many valid, compelling and cogent arguments being made both for and against the present proposed amendment. Nadel finds itself unable given the shortness of time with which this matter has come before the committee to offer a decisive view one way or the other.

· BRIEF ASPECTS OF THE ARGUMENTS
- Extreme and Political Power
The primary object of the tenure limitation on constitutional court judges relates to the immense power constitutional court judges exercise in their role as "arbiters of the constitution". While it is true that all judges exercise this power in varying degrees, it is also true that the Constitutional Court has final jurisdiction in this regard. It is thus because of the "socio–political" role that judges find themselves playing in this context that this power is to some extent regarded as equivalent to that of a third chamber of Parliament. While this is an erroneous analogy it does illustrate the potential power and socio-political role that the Constitutional Court is required to play. It is in this context that the tenure limit needs to be understood as a constitutional check and balance on power. It also provides for regular changes to take account of shifting values and changes in society’s notions of boni mores. A further aspect that is raised is the horizontal application of jurisdiction and the additional fact that the power of other judges and judicial officers is in fact much more widely of effect and less controlled and thus open to less checks and balances due the fact that only a very small number of cases make it to the constitutional court.

- Progressive Jurisprudence
It is Nadel’s position that it is important to recognise the need to maintain the progressive role played by the Constitutional Court despite the concerns that have been expressed that the progressive nature of this jurisprudence will change due to the termination and loss of the Constitutional Court’s progressive judges. It is thus argued that unless there is a constitutional amendment to provide for the permanent tenure of such judges they will be lost to the country’s courts and our progressive jurisprudence will suffer accordingly.

Nadel believes that a process of evolution should be encouraged in view of the fact that the status quo provides for a changeover of judges. However, the concern is that the jurisprudence that has currently been developing and which is winning support both internationally as well as locally among large sectors of the judiciary needs to be given additional time to develop. To allow for the wholesale changeover in the composition of the Constitutional Court at this stage of its development could in our respectful submission prove to be counter-productive to the progressive nature of the jurisprudence evolving and developed thus far. We are thus concerned that there needs to be greater security of tenure for the Constitutional Court judges and a mechanism to effect an appropriate measure of continuity. There will always be some concern that new appointees to the Constitutional Court have yet to prove themselves but this is a matter that can be addressed by the stakeholders at the Judicial Services Commission.

It is important that constitutional principles be designed around matters of principle and not around individuals or personalities. Nadel wishes to stress the fact that we have faith in our judges and the role of the Judicial Services Commission. We are alarmed at the extent to which the issues in this debate have become personalised rather than focussed on matters of principle.

- Parity of Conditions of Service
We agree with the views of Justice Chaskalson regarding the required parity of conditions of service, pensions and the like. We believe that Constitutional judges should be employed on the same conditions as other High Court judges. Regardless of which way the debate is decided this remains a question that should be addressed as a matter of urgency.

CONCLUSION
Nadel respectfully believes that insufficient time has been allowed for this very important matter that goes to very heart of our democracy, to be sufficiently and widely debated by all sectors of civil society. The nature of the debate is potentially divisive and it thus requires broader consultation in order to seek greater consensus on the matter.

If however, it is intended to arrive at a conclusion, Nadel would advocate a position that sought to balance the protection of the independence of the Constitutional Court’s pivotal role while at the same time ensuring sufficient representivity and responsiveness to changing values and boni mores of society.

Nadel respectfully reserves the right to amend, amplify and vary the views and positions adopted in this submission once it has had the opportunity to consult more widely.