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South Africa: Constitutionality of Extension of Chief Justice’s Tenure to Be Challenged

(June 17, 2011) Two South Africa-based rights groups are gearing up to challenge the legality of President Jacob Zuma's June 3, 2011, decision to unilaterally extend by five years the term of Sandile Ngcobo, Chief Justice of the Constitutional Court. Ngcobo's 12-year term is slated to expire on August 15, 2011. (Pierre De Vos, CASAC to Challenge Extension of CJ's Term of Office, CONSTITUTIONALLY SPEAKING (June 15, 2011).) The groups, the Council for the Advancement of the Constitution (CASAC) and the Center for Applied Legal Studies, contend that section 8(a) of the Judges' Remuneration and Conditions of Employment Act, 2001 (No. 47 of 2001, 437:22854 GOVERNMENT GAZETTE (Nov. 22, 2001)), which provided the basis for the President's decision, is unconstitutional. (Franny Rabkin, Chief Justice Legal Challenge for Zuma, BUSINESS DAY (June 6, 2011).)

The petitioners claim that the President's action to extend the term of the Chief Justice does not meet a constitutional provision that limits the terms of a Constitutional Court judge. Under the South African Constitution, a Justice of the South African Constitutional Court serves for a 12–year, non-renewable term, or until he/she reaches the age of 70, whichever comes first. (Constitution of the Republic of South Africa, 1996, § 176, Constitutional Court of South Africa website (last visited June 15, 2011).) Further extension is possible only through “an Act of Parliament.” (Id.) The petitioners contend that section 8 of the Judges' Remuneration and Conditions of Employment Act does not amount to an “Act of Parliament” under the meaning of the Constitution, and that conferral upon the President of unfettered power to extend the term of a Chief Justice compromises judicial independence. (Rabkin, supra). In addition, they argue that the Constitution does not allow extension of the term of a single Constitutional Court Justice; to be in conformity with the Constitution, extensions have to be general in nature. (De Vos, supra.)

The petitioners will file their petition on July 19, 2011, before the North High Court, a court that has original jurisdiction to adjudicate constitutional issues unless they are specifically reserved for the Constitutional Court or other courts. (Id.; Constitution of the Republic of South Africa, § 169). The Constitutional Court is the court of last resort on constitutional matters. (Constitution of the Republic of South Africa, 1996, § 167.)