CCT53/11

CCT54/11

CCT62/11

[2011] ZACC 23

2011 (5) SA 388 (CC)

2011 (10) BCLR 1017 (CC)

The Court

18 July 20111

29 July 2011

http://hdl.handle.net/20.500.12144/3644

Three applications for direct access arise from a decision by the President of the Republic of South Africa to extend the term of office of the Chief Justice of South Africa for five years.

Applications for direct access to challenge the constitutional validity of section 8(a) of the Judges’ Remuneration and Conditions of Employment Act (Act) and the President’s extension of the Chief Justice’s term pursuant to it. Section 176(1) of the Constitution provides that a Constitutional Court judge holds office for a non-renewable term of 12 years or until he or she reaches the age of 70 years, whichever is sooner, except where an Act of Parliament extends the term of office of a Constitutional Court judge. Section 8(a) of the Act purported to allow the President to request a Chief Justice who is about to be discharged from active service to continue in office as the Chief Justice for an additional period determined by the President. The Court held that by empowering the President to extend the term of office of the Chief Justice section 8(a) usurped the power the Constitution entrusted to Parliament. Parliament alone has the power to extend a Constitutional Court judge’s term of office. Section 8(a) therefore amounted to an unlawful delegation of a legislative power. The Court further held that, properly interpreted, section 176(1) does not permit the singling out of any one Constitutional Court judge, such as the Chief Justice, for the extension of his or her term, although three members of the Court were of the opinion that the singling out of the Chief Justice may be permitted if done by an Act of Parliament of general application, rationally connected to a legitimate governmental purpose and furthered judicial independence. The Court was unanimous that in this case the extension of the term of office of the Chief Justice only was constitutionally invalid. The Court granted direct access in view of the urgency of the matter, and declared section 8(a) and all conduct pursuant to it unconstitutional, and granted an order that the extension of the term of office of the Chief Justice was of no force and effect. Judgment of the Court.