Chief justice Raymond Zondo said that Justices Zak Yacoob and Johan Froneman would be fulfilling a support service to the justices of the Constitutional Court because of the huge workload faced by the court’s justices since the expansion of the jurisdiction of the court. Picture: Independent Newspapers Archive
Legal NGO the National Association of Democratic Lawyers of South Africa (Nadel) has written to Chief Justice Raymond Zondo to say they are gravely concerned about his decision to recall retired justices of the Constitutional Court to render services to currently serving justices of the Court.
Last week Zondo said that Justices Zak Yacoob and Johan Froneman would be fulfilling a support service to the justices of the Constitutional Court because of the huge workload faced by the court’s justices since the expansion of the jurisdiction of the court.
The Chief Justice said Yacoob and Froneman would be volunteering this service.
‘Sunday World’ recently reported that retired justice Zak Yacoob had been appointed to the Constitutional Court to “advise the 11 justices of the court on which appeal cases to dismiss and which to entertain”.
Zondo’s clarification was in response to a letter from the Council for the Advancement of the Constitution (Casac) which wanted clarity on the role to be played by controversial retired Justice Yacoob at the Constitutional Court.
Nadel’s secretary-general Nolitha Jali in the letter said that there is no basis in law for the Chief Justice to request the appointment of retired justices of the Constitutional Court to perform judicial functions at the Court.
“The decision conflicts with the provisions of section 176(1) of the Constitution, which states that ‘A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge’.”
Nadel said according to the letter from the Chief Justice, the retired justices will read applications for leave to appeal and prepare memorandums for the benefit of the sitting justices. Reading applications for leave to appeal is a core function of the justices of the Constitutional Court.
“There are more applications rejected at the application for leave to appeal stage than after oral argument. In fact, according to our research, only about 15% of all applications to the Constitutional Court are enrolled for argument. This means that more than 80% of all cases brought to the Court are dismissed, with no reasons, and without oral argument,” Nadel wrote.
“Undoubtedly, this is the bulk of the work of the court and the most important for the credibility and standing of the court.”
The association said it believes that as a matter of principle, “it is wrong to excuse sitting members of the court from the most important work of the court, which is to read, consider and decide applications for leave to appeal”.
“Litigants, whose applications to the court are refused without oral hearings need the assurance that every member of the court has considered their own application, and decided against granting leave.
“On the current approach where non-members of the court perform the service alluded to by the Chief Justice, such assurance cannot be granted, as a sitting judge can simply ‘adopt’ the views of a retired justice as their own, without reading the application on their own and preparing the required memorandum on their own.”
Nadel told Zondo it demands the urgent reconsideration of his decision and it “reserves its rights to challenge the decision by way of judicial review before an appropriate court”.
Two other legal NGOs the Council for the Advancement of the Constitution (Casac) and Freedom Under Law (FUL) also wrote to Zondo this week asking him to reconsider his decision.
The Mercury