The Constitution of the Republic of South Africa Amendment Bill, 2001 contains proposed amendments to the Constitution in three broad areas, namely: the Judiciary; the Appointment of Deputy Ministers and Local Government. This submission relates to the amendments that address the term of office and retirement age of Constitutional Court judges.

The amendment has attracted widespread interest in the media and from certain sectors of the Judiciary. It has been pointed out, correctly, that decisions on this issue are essentially political and not legal.

The South African Human Rights Human Rights Commission (SAHRC) will argue that at this stage it is not satisfied that persuasive arguments by government that the amendment is compelling and justifiable have been put forward. Until such time that compelling and justifiable reasons for this amendment are placed on the table for robust public debate, the Commission can not support the amendment.

The proposed amendment removes Section 176 (1) of the Constitution that currently reads as follows:

Section 176 (2) is amended to reflect that all judges, rather than other judges, hold office until they are discharged from active service in terms of an Act of Parliament.

The proposed amendment reads as follows:

The Interim Constitution appointed Constitutional Court judges for 7 years. The Final Constitution extended the tenure of Constitutional Court judges to 12 years. Other Judges have tenure until they are discharged from active service in terms of an Act of Parliament.

It is in keeping with the responsibilities bestowed on the SAHRC in terms of the Constitution that the SAHRC comments on this potentially important Constitutional amendment. Section 184. (1) of the Constitution reads as follows:

1. promote respect for human rights and a culture of human rights;
2. promote the protection, development and attainment of human rights; and
3. Monitor and assess the observance of human rights in the Republic."

The Constitutional Court is the highest court in all-constitutional matters, and takes final decisions on constitutional matters.

The SAHRC thus has a constitutional duty to promote the protection of human rights. Through promoting the protection of the constitutional court and the tenure of its judges, the SAHRC is fulfilling its constitutional mandate.

In a press statement issued by the Ministry for Justice and Constitutional Development background information and comments are put forward in support of the amendment. These are set out below with commentary thereon.

There is a current disparity between the terms of employment between Constitutional Court judges and Supreme Court of Appeals and High Court Judges.

The latter are appointed for life (they do not retire but are discharged from active service) and receive a salary for life. On the death of the judge their spouse receives a portion of the salary as a widows (sic) pension. All Judges receive a tax-free gratuity when they are discharged from active service or vacate office after 12 years as the case may be.

However, the present incumbents were fully aware of the current disparity and accepted their positions based on the present situation. Already the Constitutional Court judges terms of office have been extended from 7 to 12 years.

Further, salaries and or pensions are regulated by legislation and could be amended to bring about greater parity in the situation Judges find themselves in at the expiration of their term of office. It is thus unclear why the Constitution must be amended to remedy this problem.

Should one of the impetuses for change be to increase the security of tenure of constitutional court judges and thereby bring about greater parity between the judges then deferring the issue of tenure and retirement age to legislation weakens constitutional court judge’s current tenure, which is enshrined in the Constitution. Stating the tenure provisions explicitly in the Constitution increases the tenure security of judges.

The tenure of Constitutional Court judges was originally placed in the Constitution and should accordingly remain enshrined in the Constitution to ensure that they enjoy the same level of constitutional protection.

The amendments are as a result of a colloquium held in October 2000 where a number of changes to the judiciary were proposed.

These suggestions are being dealt with in a piece meal fashion. There was a unamainous decision at the colloquium that there ought to be a single head (the Chief Justice) of a single judiciary who is also the Head of the Constitutional Court. The Judicial Officers Amendment Bill is in the process of being drafted to give effect to the amendment to the Constitution.

A single judiciary with a single head presupposes that the new Chief Justice will also be the Head of the Constitutional Court and that the person will be appointed for life.

This is not necessarily the case. Given the extremely powerful nature of the position it can be argued that a term of office would be appropriate.

Also, changes in the composition of the Constitutional bench could contribute to a dynamic legal system with a vibrant jurisprudence that does not potentially become staid or rigid.

In the Press Statement it is argued that a Chief Justice with limited tenure may bring about a situation wherein it is perceived that Constitutional Court judges have weaker tenure.

However, it can also be argued that a term of office enshrined in the Constitution rather than legislation promotes greater security of tenure for the Chief Justice. Many Constitutions around the world have limited terms of office for their Constitutional Court judges and thus it is questionable if the fear of such a perception is valid.

According to the Press Statement, the amendment is in accordance with the constitutional duty placed on the Minister to rationalize all courts, including their structure, composition, functioning and jurisdiction and all relevant legislation with a view to establishing a legal system that is suited to the needs of the Constitution. The Minister is satisfied that the amendment is in accordance with this principle.

There is merit in this argument. However, it is debatable whether this implies that the tenure security of constitutional court judges must be removed from the Constitution. The amendment addresses the manner in which the Minister carries out his constitutional duty and not necessarily the principles agreed on by all stakeholders at the Colloquium. It is possible that the Constitutional duty can be fulfilled without tampering with the present status quo.

Although there may be merit in maintaining what was negotiated at the Constitutional negotiations, considering all the other factors the Minister wishes to go ahead with the amendment.

As the press statement indicates there is merit in maintaining what was negotiated in the Interim and Final Constitutions. It has been argued that limited terms of office for constitutional court judges are in keeping with modern constitutional theory and practice. Also, that given that the Constitutional Court is a court of final say and the corresponding enormity of the power associated therewith that it is only appropriate that the Judges serve for a limited period.

In the Press Statement it is argued that Constitutional Court judges are presently at a distinct disadvantage should their tenure continue to be limited.

It is undesirable that when their term of office expires that they re enter practice, have to sit on the Supreme Court of Appeals or High Court, which are lower Courts, or enter a new career, which could be risky or undesirable.

South Africa has a unique situation where issues of transformation must be considered when appointing judges. This applies even more particularly to constitutional court judges who have the final say on many important issues affecting the human rights of the country’s citizens and our moral and political discourse.

Although we can learn from examples that have been set in many countries around the world, we need to ultimately decide on a model that is good for South Africa. Given our history, it is possible in South Africa that suitable candidates for the position of constitutional court judges may be very young. This is unlike many countries where the potential pool of appointees is larger and consequently older.

The ages of our current Constitutional Court judges after 12 years of service would be 75,66,63,68,65,69,56,54,49,72,58. Thus, before the expiration of their 12-year term only two of our present constitutional court judges would have retired at the age of 70. A further two judges would still have a few years to serve as they have been appointed post 1994 following the deaths of Judges Didcott and Mohammed.

Many of our Judges clearly have a number of "working years" ahead of them. There is some merit in the arguments as to what employment these judges may take up post the Constitutional Court, to what extent they would be disadvantaged and the desirability of constitutional court judges seeking other and certain forms of employment. However, this is a challenge faced by departing judges from constitutional courts in many jurisdictions around the world. South African constitutional court judges could learn from their colleagues. After sitting on the bench for 12 years a judge will have an immense amount of knowledge and skills that could be utilized in a multitude of ways.

It is an undesirable situation that numerous judges will all leave the Constitutional Court at the same time at the end of their 12 years in office.

It is clearly obvious that the simultaneous departure of 11 (eleven) Constitutional Court judges would have a negative impact on the development of the constitutional jurisprudence of the country. However, this is a short-term problem. The natural efluxion of judges, through retirement and death ought to cure this problem over time. Further, this issue must have been considered at the time of the drafting of the Constitution. Should such a model have such a negative impact on the course of jurisprudential development then surely this model would not have been chosen initially as the drafter’s of the Constitution must have been aware of this issue.

It must be noted that on a rough calculation of the present judge’s ages there are only two judges who would reach the age of 70 by the end of their term of office. This would mean that, 7 judges would have to be replaced in 2007 (as mentioned above two judges have already been appointed following the deaths of Judges Didcott and Mohammed). This could potentially have a considerable impact on the delivery of justice and the development of a constitutional jurisprudence. This argument is also based on the presumption that there are not suitable candidates to fill these positions. However, given the number of current constitutional court judges in their 60’s and who will retire during the course of the next decade, the problem appears to remain with us. In other words, should this perceived problem exist, a constitutional amendment will not necessarily solve the dilemma.

As a general rule it is not desirable to amend the Constitution. It is even more undesirable to amend the Constitution to alleviate a potentially short-term problem.

The current situation may be a perceived or potential impediment to attracting the top legal brains to serve on the Constitutional Court according to the Press Statement.

The argument that limited tenure restricts or inhibits eminent persons from considering to take up positions on the Bench operates both ways. Just as there may be persons who are attracted by the security of life tenure, so to are there persons who may view this as an obstacle to accepting the appointment.

There may be persons who are willing to consider serving the constitution and their country for a limited period during the prime of their career rather than delaying an appointment until later in life because it is viewed as the last job before retirement.

There may be people who do not wish to become life judges. This may restrict them in other endeavors that they may wish to pursue. A life judge can not willy-nilly resign should the Judge decide to pursue some other career path. No matter how sound the reasons for resignation, it would result in speculation. This would be serious for South Africa internally and externally. The resignation of a constitutional court judge could lead to instability and speculation about the rule of law and democracy in the country. This would be unwise for a developing country as it could affect investor confidence in the economy. Any negative impact could ultimately affect the most marginalised sectors of our communities.

According to the Press Statement, in terms of the Judicial Officers Amendment Bill Judges will serve until the age of 70 with the option to remain until 75 in order to complete 15 years of pensionable service. This position is the same as other common law countries.

Countries deal with the tenure of office and retirement age of judges differently. Some countries enshrine the retirement age of judges in the constitution. This obviates the need for separate legislation to determine the retirement age. Other countries defer to legislation to regulate the retirement age of judges. There thus appears no conclusive manner in which the issue is dealt with internationally. Our constitution is modeled in part on the Continental system though where constitutional court judges tenure is limited, e.g. Germany, France and Spain

Closer to home, in Namibia, Article 82 of the Constitution provides that judges may hold office until 65. However, it further provides, that the President can extend this to 70 years of age by an Act of Parliament thereby making the retirement age higher.

In Zambia, it is enshrined in the Constitution that Judges vacate office at the age of 65.

In Australia, the Chief Justice and Justices of the High Court can be appointed for a term expiring upon the judge reaching the age of 70. However the Constitution provides that Parliament may fix the retirement age at lower than 70.

In many countries the fixed term of office of Constitutional Court judges is set at 7 or 9 years. In Angola, for example, the Constitutional Court judges according to the 1993 Constitution serve for a non-renewable period of 7 years.

By relegating the tenure of the Constitutional Court judges to the Legislature there is the potential and the possibility that a government that shows blatant disrespect for the independence of the judiciary and the rule of law could tamper with the tenure of judges through an Act of Parliament.

Constitutional Court judges play a fundamental and powerful role in the checks and balances system of our democracy. As the court of final say on constitutional matters, the court wields power in excess of other courts. The Constitutional Court is not only the court of final say in determining rights disputes but also the final arbiter of disputes between organs of state and the constitutionality of Bills and Acts of Parliament. Due to this fundamental role in the checks and balances system, the Constitutional Court would potentially be the final arbiter of the proposed constitutional amendment. It would be clearly improper for the court to be a judge in it’s own matter and to determine the tenure of office of its own judges. The Constitutional Court has exclusive jurisdiction over constitutional amendments. This court will therefore determine it’s own jurisdiction. The matter could therefore not be taken to this court for an impartial hearing as it has a direct interest in the matter. It would place the judges in an invidious position of having to determine a matter in which they have an interest.

The current model for tenure of constitutional court judges and the proposed constitutional amendment does not appear to be out of line with constitutional arrangements around the world. The current model was adopted at the time that the constitution was negotiated. As has been demonstrated in this submission, the reasons put forward by government and those in favour of amending the Constitution do not indicate that the material circumstances surrounding the tenure of constitutional court judges have changed significantly, if at all, and that these changes would warrant an amendment to the Constitution.

In the circumstances, the South African Human Rights Commission can not support this amendment to the Constitution. The general rule that the constitution ought only to be amended where there is compelling and justifiable reasons to do so should be adhered to.

The SAHRC would be willing to support an amendment to the Constitution where compelling and justifiable reasons are demonstrated. The current arguments for amending the Constitution do not appear to pass the test of compelling and justifiable reasons. The SAHRC can therefore not support the amendment at this stage.

Both the Interim and Final Constitutions chose the option of limited tenure for Constitutional Court judges. The decision to grant limited tenure was thus made twice. These were deliberate decisions made by the drafters and is now enshrined in section 176(1) of the Constitution. It is our submission that constitutional changes should only be undertaken if it can be demonstrated that the changes are necessary and in the interests of our country.

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.

The subsection incorporates two separate ideas. It provides for the tenure of office of the Constitutional Court and deals with the age of retirement of the judges. The consequence of combining these two ideas in one subsection is that some judges, who reach the age of 70, would be required to step down even though they have not completed their twelve-year tenure of office.

It is our view that the non-renewable tenure of 12 years is justifiable in the light of the power exercised by the Constitutional Court. The Court played a constructive and vital role in ushering in the new constitutional order through the certification process. Section 167 (4) grants the Constitutional Court exclusive powers in respect of some issues of national importance. It plays a role in facilitating the checks and balances inherent in the Constitution. It has powers of abstract review of legislation. The constitutional drafters decided that a court, possessing this power should have limited tenure for its judges. It is our submission that the onus lies on those seeking to change this position to demonstrate that the change is necessary. We are of the opinion that the proponents of the change have not discharged this responsibility.

The independence of the judiciary is protected explicitly in various section of the Constitution. Protecting the tenure of judges in the constitution re-inforces and underscores this most vital feature of our constitutional democracy. This is also in keeping with modern constitutional practice. The proposed amendment would create life tenure, which would not be explicitly protected in the Constitution. If we separate the interests of the institution in its own right from the justices who staff the court, we are not satisfied that the proposed amendment is necessary to advance the interests of the court as an institution.

A possible compromise position and one which would necessitate less drastic changes would be to retain the limited tenure of 12 years, but change the age of retirement and bring this aspect in line with the law regulating High Court judges. This would deal with some of the concerns expressed on behalf of the justices. We are unable to identify a compelling constitutional justification for insisting that Constitutional Court judges should be forced to retire at 70 while High Court and Supreme Court of Appeal judges can continue, in certain circumstances, until age 75.

It is our submission that an appropriate resolution, given the arguments submitted in support of the amendment, would be to retain the limited tenure of 12 years and to delete the words ‘ but must retire at the age of 70’ from section 176(1) and make other appropriate amendments. The issue of retirement would then be dealt with in legislation. Constitutional Court judges would remain in office for 12 years or until they reach the age of 75, whichever occurs first.

This submission was prepared by: Parliamentary Officer / Legislation Monitor Judith R Cohen