ANC STATEMENT ON THE CONSTITUTIONAL COURT JUDGEMENT

In line with our principle and commitment in the independence of the Judiciary, the African National Congress (ANC) unconditionally accepts today's (29 July 2011) judgement of the Constitutional Court, declaring Section 8 (a) of the Judges' Remuneration and Conditions of Employment Act of 2001, as unconstitutional and invalid (see here).

Contrary to views held by individuals and some organisations that brought the challenge before the Constitutional Court, we remain convinced that the extension of Chief Justice Sandile Ngcobo's term of office by the President of the Republic of South Africa, was both constitutional and within the ambit of the law. It should also be said that this judgement does not imply any illegal action on the part of the President of the Republic of South Africa on the matter.

We are nonetheless, perplexed and totally astonished by those who brought this matter before the Constitutional Court, totally disregarding similar extensions of terms of previous chief justices. What surprises us most is that nobody - including such organisations as Justice Alliance of South Africa (JASA), Freedom Under Law NPC, Wits Centre for Applied Legal Studies (CALS) and the Council for the Advancement of the South African Constitution (CASAC) - raised any finger or any objections when the same piece of legislation was applied in the past.

The question we ask is that despite individuals currently heading the same organisations, were present when the same law was used in the past, no court challenges were lodged. What has now changed? Why was this piece of legislation not challenged at the time?

No one made any court challenges when the law, which gives expression to Section 174(3) of the Constitution, was passed unanimously by both houses of Parliament in 2001 and was used in respect of esteemed former Chief Justices Arthur Chaskalson and Pius Langa.

Former Chief Justice Chaskalson would have been discharged in 2001, after he would have served seven years, but continued to serve for a period of 12 years under the following provisions:

• Section 3 (1): served for a period of 12 years.
• Section 4 (2): continued to serve beyond the age of 70 years for purposes of completing 12 years. He was 73 years when he was discharged from active service.
• Former Chief Justice Langa continued to serve as the Chief Justice in terms of Section 4 (2), beyond the age of 70 years. He retired when he was 70 years and six months old.

The predecessor of Section 8 (a) of the Judges' Remuneration Acts - section 7A of the 1989 Judges Remuneration Act - was used to extend the term of office of the former Chief Justice Corbett in 1993 and 1994. The latter extension was done under the auspices Section 97 of the Interim Constitution, which similarly guaranteed the independence of the judiciary.

There has been no problem with the law in the previous extensions, until it was used by President Jacob Zuma to extend the term of office of Chief Justice Ngcobo last month.

In extending the term of office of Chief Justice Ngcobo, President Zuma rightfully used an existing law - the Judges' Remuneration and Conditions of Employment Act of 2001 - which has been applied in respect of previous chief justices in the Republic of South Africa, as demonstrated above.

It therefore, goes without say that the Constitution and the legal framework in addition to the precedents set, were enough motivation for the President to act in the manner he acted on this matter.

Statement issued by Jackson Mthembu, ANC national spokesperson, July 29 2011

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