THE CONSTITUTIONAL COURT OF SOUTH AFRICA COUNCIL FOR THE ADVANCEMENT OF THE SA CONSTITUTION

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1 THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT62/11 In the application of: CENTRE FOR APPLIED LEGAL STUDIES COUNCIL FOR THE ADVANCEMENT OF THE SA CONSTITUTION First Applicant Second Applicant and THE PRESIDENT OF THE RSA THE MINISTER OF JUSTICE CHIEF JUSTICE SANDILE NGCOBO First Respondent Second Respondent Third Respondent PRACTICE NOTE OF CALS AND CASAC

2 2 THE NATURE OF THE PROCEEDINGS This is a conditional application for direct access by the Centre for Applied Legal Studies (CALS) and the Council for the Advancement of the South African Constitution (CASAC). If direct access is granted, CALS and CASAC seek orders declaring invalid section 8(a) of the Judges Remuneration and Conditions of Employment Act 47 of 2001 (the Judges Remuneration Act) and the President s decision in terms of the section to extend the term of the current Chief Justice. ISSUES TO BE ARGUED Section 8(a) of the Judges Remuneration Act violates section 176(1) of the Constitution; Section 8(a) of the Judges Remuneration Act violates the principle of judicial independence; Section 8(a) of the Judges Remuneration Act violates section 174(3) of the Constitution; and The question of remedy.

3 3 PORTIONS OF THE RECORD NECESSARY FOR DETERMINATION OF MATTER The whole record. ESTIMATED DURATION OF ORAL ARGUMENT The matter has been set down for one day. SUMMARY OF ARGUMENT 1 CALS and CASAC abide the question of direct access, save to say that if this Court grants direct access to Freedom Under Law or the Justice Alliance of SA, it is plainly in the interests of justice for the application of CALS and CASAC to likewise be determined on the basis of direct access. 2 CALS and CASAC submit that s 8(a) of the Judges Remuneration Act and the President s decision taken in terms of it, are unconstitutional and invalid on three grounds. 2.1 The first is that they violate s 176(1) of the Constitution. This is, in particular, because section 8(a) impermissibly purports to delegate the power to extend the tenure of the Chief Justice to the President and because section 176(1) does not permit the extension of the term of office of a particular Chief Justice without extending the terms of office of all Chief Justices in the same circumstances.

4 4 2.2 The second is that they violate the constitutional requirement of judicial independence. This is because the non-renewability of the terms of office of Constitutional Court judges is an important part of the protection of their judicial independence. 2.3 The third is that they violate s 174(3) of the Constitution. By dispensing with the need for any consultation, s 8(a) circumvents the important check and balances on the President s power of appointment in terms of s 174(3). 3 On the question of remedy, CALS and CASAC submit: 3.1 If this court makes an order of invalidity after 15 August 2011, then it should do so with prospective effect only. 3.2 The Minister asks for any order of invalidity to be suspended but does not advance any justification for it. CALS and CASAC will address the issue if and when he does so. 3.3 NADEL supports the Minister s request for suspension. It argues in effect that the incumbent Chief Justice is better able to perform the functions of his office than anybody else who might be appointed in his stead. CALS and CASAC are unable to make such a comparison and it would be invidious for them to do so.

5 5 AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED A list of all authorities relied on by CALS and CASAC is attached to the written argument. The authorities on which particular reliance will be placed are: Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, (4) SA 744 (CC) Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another 2000 (1) SA 661 (CC) Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC) Wim Trengove SC Gilbert Marcus SC Steven Budlender Vincent Maleka SC Geoff Budlender SC Tembeka Ngcukaitobi Nomzamo Mji Counsel for CALS Counsel for CASAC Chambers Johannesburg and Cape Town 8 July 2011