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

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 SUBMISSIONS OF CALS AND CASAC

2 CONTENTS INTRODUCTION... 3 The facts... 3 Direct access... 4 The substantive issues... 5 SECTION 176(1) OF THE CONSTITUTION... 7 The relevant provisions... 7 Delegation not permitted... 8 Only an extension of general application permitted... 11 The legislative history of section 8(a)... 13 Conclusion... 14 THE CONSTITUTIONAL REQUIREMENT OF JUDICIAL INDEPENDENCE... 15 SECTION 174(3) OF THE CONSTITUTION... 21 REMEDY... 24 PRAYER... 26

3 INTRODUCTION The facts 1. The Chief Justice s term of office is due to expire on 15 August 2011. 2. On 11 April 2011 the President requested the Chief Justice to continue to perform active service as Chief Justice in terms of s 8(a) of the Judges Remuneration and Conditions of Employment Act 88 of 1989. 1 3. Following speculation in the media that government may extend the Chief Justice s term of office, CALS wrote to the President and the Minister of Justice on 17 May 2011 expressing the view that s 8 of the Judges Remuneration Act was invalid and said that, if the Chief Justice s term of office were to be extended, CALS would challenge the validity of s 8 because it raised an important question of principle. 2 4. The Chief Justice informed the President on 2 June 2011 that he had decided to accede to the President s request. 3 5. The President formally decided on 3 June 2011 to extend the Chief Justice s term of office for a period of five years. 4 The President informed the leaders of opposition 1 2 3 4 Letter 11 April 2011 ZC p 194 Letter 17 May 2011 FA6 p 93 at p 94 paras 5 to 8 Letter 2 June 2011 ZD p 196 Minute 3 June 2011 ZF p 200

4 political parties of his decision and publicly announced it. 5 The State Attorney informed CALS of the President s decision. 6 Direct access 6. On 15 June 2011 CALS and CASAC launched an application in the High Court challenging the validity of s 8(a) and the President s decision made in terms of it. 7 On 21 June 2011 Freedom Under Law and the Justice Alliance of South Africa launched an application for direct access to this court for substantially the same relief. CALS and CASAC consequently launched a conditional application to this court on 23 June 2011, for direct access to this court if it should grant direct access to FUL and JASA. 8 7. CALS and CASAC abide the decision of this court on whether to grant direct access to FUL and JASA. If it should however grant direct access to them, then CALS and CASAC also seek direct access to this court. The President accepts that, if direct access is granted to FUL and JASA, it would be in the interests of justice for CALS and CASAC also to be granted direct access. 9 The Minister however denies that CALS and CASAC have made out a case for direct access even if it should be granted to FUL and JASA. 10 We submit with respect that the Minister s approach is unsustainable. If FUL and JASA qualify for direct access, then so would CALS and 5 6 7 8 9 10 Statement 3 June 2011 FA9 p 98 Letter 3 June 2011 FA10 p 100 High Court Notice of Motion 15 June 2011 p 18 Conditional application 23 June 2011 p 1 President s Answer p 128 paras 15 to 17 Minister s Answer p 137 para 13, p 139 para 20.4, p 140 paras 23.2 to 24.4

5 CASAC on the same grounds. This conclusion is in line with this court s approach to direct access in comparable situations. 11 The substantive issues 8. We shall 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. The first is that they violate s 176(1) of the Constitution. The second is that they violate the constitutional requirement of judicial independence. The third is that they violate s 174(3) of the Constitution. 9. Our submissions on remedy are as follows: 9.1. If this court makes an order of invalidity after 15 August 2011, then it should do so with prospective effect only. 9.2. The Minister asks for any order of invalidity to be suspended but does not advance any justification for it. We shall address the issue if and when he does so. 9.3. 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 11 Minister of Home Affairs v Fourie (Doctors for Life International and Others, Amici Curiae) 2006 (1) SA 524 (CC) paras 34 to 44; Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae) 2005 (1) SA 580 (CC) paras 29 to 34; Mkontwana v Nelson Mandela Metropolitan Municipality and Another 2005 (1) SA 530 (CC) paras 2 to 16; AParty v Minister for Home Affairs; Moloko v Minister for Home Affairs 2009 (3) SA 649 (CC) paras 14 to 19 and 27 to 34

6 than anybody else who might be appointed in his stead. We are unable to make such a comparison and it would be invidious for us to do so.

7 SECTION 176(1) OF THE CONSTITUTION The relevant provisions 10. Section 176(1) of the Constitution provides as follows: 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 when an Act of Parliament extends the term of office of a Constitutional Court judge. 11. Sections 3(1), 4(1) and 4(2) of the Judges Remuneration Act regulate the terms of office of Constitutional Court judges, including the Chief Justice, as follows: 11.1. A judge is normally discharged from active service when he or she reaches the age of 70 or completes a 12-year term of office, whichever comes first. 11.2. If at that stage, the judge has not completed 15 years of active service (as a judge of the Constitutional Court or the High Court), he or she continues in active service until completion of 15 years of active service or the age of 75, whichever comes first. 12. Section 8(a) provides for the further extension of the Chief Justice s term of office as follows: A Chief Justice who becomes eligible for discharge from active service in terms of section 3(1)(a) or 4(1) or (2), may, at the request of the President, from the date on which he or she becomes so eligible for discharge from

8 active service, continue to perform active service as Chief Justice of South Africa, for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years. (our emphasis) 13. Section 8(a) thus grants the President the power to extend the tenure of a Chief Justice of his choice for any period determined by him provided only that it does not extend beyond the Chief Justice s 75 th year. Delegation not permitted 14. Section 176(1) vests the power to extend the Chief Justice s term of office in parliament. Section 8(a) purports to delegate that power to the President. 12 We submit for the following reasons that this delegation is impermissible. 15. This court has frequently recognised that the Constitution sometimes permits parliament to delegate its legislative powers and sometimes not. 13 Whether it is in any given case entitled to do so, is a matter of constitutional interpretation based in the first 12 13 The Minister seems to deny that s 8(a) confers any discretion on the President (Minister s High Court Answer p 220 para 50.1 and p 227 para 60.1). His denial is however incompatible with the language of the section and is contradicted by the President s own understanding: I was advised that there were two options open to me. I had to consider both and decide on which I consider appropriate in the circumstances.... I could either determine to appoint a new Chief Justice utilising the process and my functions under s 174(3) of the Constitution or I could seek to exercise my functions under s 8(a) of the Judges Act and request the Chief Justice to continue service for a period specified by me... I decided on the latter initiative especially as a result of the Chief Justice s involvement in projects other than decision making in litigation. (President s High Court Answer p 167 para 72) Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC) para 51; In re Constitutionality of the Mpumalanga Petitions Bill, 2000 2002 (1) SA 447 (CC) para 19; Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another 2000 (1) SA 661 (CC) para 123 124; AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) para 49, 93 and 122-123

9 place on the language and context of the enabling constitutional provision. This court put it as follows in the Executive Council case: The enquiry is whether the Constitution authorises the delegation of the power in question. Whether there is constitutional authority to delegate is therefore a matter of constitutional interpretation. The language used in the Constitution and the context in which the provisions being construed occur are important considerations in that process. 14 (our emphasis) 16. The language of s 176(1) makes it clear that the power vested in parliament to extend the Chief Justice s term of office, may not be delegated. That is because it prescribes the legislative instrument by which the extension must be made. It may only be done by an act of parliament. It means that only parliament may exercise this power and cannot delegate it to anybody else. 17. This implication is highlighted by the contrast between the language of s 176(1) and that of the provision immediately following it in s 176(2). It provides that other judges hold office until they are discharged from active service in terms of an Act of Parliament. This language allows room for delegation to the executive by an act of parliament. 15 The language of s 176(1) on the other hand, leaves no room for the exercise of the power of extension by anybody other than parliament itself. 14 15 Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another 2000 (1) SA 661 (CC) para 124 Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC) paras 120 124

10 18. This understanding is also borne out by this court s judgment in the Executive Council case. 16 It concerned s 159(1) of the Constitution which provides that the term of a municipal council must be determined by national legislation. Section 239 of the Constitution defines national legislation to include subordinate legislation made in terms of an act of parliament. This court however held that parliament could not delegate its power in terms of s 159(1) to the Minister. It based its conclusion on the language and context of s 159(1). It said in relation to the language of s 159(1) that, The Constitution uses a range of expressions when it confers legislative power upon the national Legislature in chap 7. Sometimes it states that national legislation must ; at other times it states that something will be dealt with as determined by national legislation ; and at other times it uses the formulation national legislation may. Where one of the first two formulations is used, it seems to me to be a strong indication that the legislative power may not be delegated by the Legislature, although this will of course also depend upon context. 17 It said of the context of s 159(1) that, The term of office of an elected legislative body such as a municipal council is a crucial aspect of the functioning of that council. In the case of the National Assembly, s 49(1) of the Constitution determines the term and, in the case of the provincial legislatures, s 108(1) of the Constitution determines the terms. 18 It concluded as follows: 16 17 18 Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another 2000 (1) SA 661 (CC) Para 125 Para 126

11 Given its importance in the democratic political process, and given the language of s 159(1), the conclusion that s 159(1) does not permit this matter to be delegated by Parliament, but requires the term of office to be determined by Parliament itself, is unavoidable. In addition to the importance of this matter, I also take cognizance of the fact that it is one which Parliament could easily have determineditself for it is not a matter which requires the different circumstances of each municipal council to be taken into consideration. All that is required is to fix a term which will apply to all councils. In my view, this is not a matter which the Constitution permits to be delegated. The delegation was, therefore, impermissible and s 24(1) must be held to be inconsistent with s 159(1) of the Constitution. 19 19. In the present case, the language of s 176(1) does not even allow the latitude permissible under s 159(1) considered in the Executive Council case. It can also not be suggested that the determination of the terms of office of Constitutional Court judges is any less important than that of municipal councils. In the light of this court s conclusion in the Executive Council case, it is thus patent that the power to extend the term of office of the Chief Justice in terms of s 176(1) cannot be delegated as s 8(a) of the Judges Remuneration Act purports to do. Only an extension of general application permitted 20. We submit for the following reasons that s 176(1) only permits an extension of the term of office of a Chief Justice which is of general application. It does not permit the extension of the term of office of a particular Chief Justice without extending the terms 19 Para 126

12 of office of all Chief Justices in the same circumstances. Section 8(a) of the Judges Remuneration Act accordingly also violates s 176(1) insofar as it permits the President to extend the terms of office of any individual Chief Justice of his choice. 21. Section 176(1) only permits a Chief Justice s term of office to be extended by an act of parliament. It follows for the following reasons that it may only be done in relation to all or some Chief Justices as a generic class and not in relation to one or more individually selected Chief Justices: 21.1. It is a principle of the rule of law that the legislature may ordinarily only make laws of general application. 20 21.2. Any law which extends the term of office of a selected Chief Justice without also extending the terms of office of other Chief Justices in the same circumstances, would be arbitrary in its differentiation between them. Such a law would violate the prohibition of arbitrary differentiation in s 9(1) of the Constitution. 21 21.3. Such a law would also violate the principle of judicial independence because it would permit parliament to selectively extend the terms of office of only those Chief Justices whose decisions it finds acceptable. It would constitute, and would in any event create a reasonable perception, of undue interference with the principle of judicial independence. 20 21 Beinart The Rule of Law 1962 Acta Juridica 99 at 101 and 106 to 107 and footnote 58 in particular Harksen v Lane 1998 (1) SA 300 (CC) paras 44, 45 and 54(a)

13 22. Section 8(a) of the Judges Remuneration Act permits the President to extend the term of office of any Chief Justices of his choice. It thus also violates the requirement of s 176(1) that any extension be of general application. The legislative history of section 8(a) 23. The respondents seek to make something of the fact that the current version of s 176(1) and the Judges Remuneration Act were enacted at the same time. 22 We submit with respect however that this argument is unfounded: 23.1. Whether parliament thought that section 8(a) was consistent with section 176(1) of the Constitution is plainly irrelevant to the question of whether it is in fact consistent with it. 23.2. In any event, section 8(a) of the Judges Remuneration Act is, in substance, simply a re-enactment of section 7A of the Judges' Remuneration and Conditions of Employment Act 88 of 1989. 23 Section 7A of that Act came into force on 7 July 1993 before even the 1993 Constitution was adopted. It entitled the President to request the Chief Justice to continue to perform service as Chief Justice after he had been discharged from active service. 22 23 President s High Court Answer p 159 para 46; Minister s High Court Answer p 210 paras 24 to 31 Section 7A(1) provided: (1) A Chief Justice who has been discharged from active service, except a Chief Justice who has been discharged from active service in terms of section 3 (1) (b), (c) or (d), may, at the request of the President, from the date on which he has been discharged from active service, perform service as Chief Justice of South Africa for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years. (2) A Chief Justice who performs service in terms of subsection (1) shall monthly be paid such remuneration as the President may determine.

14 23.3. This hardly suggests that s 8(a) of the Judges Remuneration Act was carefully crafted to comply with the newly amended section 176(1) of the Constitution. On the contrary, it was in effect simply imported from the previous constitutional era. Conclusion 24. We submit for these reasons that s 8(a) violates s 176(1).

15 THE CONSTITUTIONAL REQUIREMENT OF JUDICIAL INDEPENDENCE 25. Judicial independence is a cornerstone of the rule of law entrenched in s 1(c) of the Constitution. 24 It is implicit in the rights to a fair hearing in terms of ss 34 and 35(3) of the Constitution. 25 It is specifically entrenched in s 165(2) of the Constitution which provides that The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. 26. This court has articulated several principles that inform the requirement of judicial independence: 26.1. At its core, judicial independence requires judicial officers to act independently and impartially in dealing with cases that come before them, and at an institutional level it requires structures to protect courts and judicial officers against external interference. 26 26.2. Judicial independence is not subject to limitation. 27 26.3. Judicial independence and impartiality are critical to individual and public confidence in the administration of justice. 28 24 25 26 27 28 Van Rooyen v The State 2002 (5) SA 246 (CC) para 17 Van Rooyen para 35 De Lange para 70; Van Rooyen para 29 Van Rooyen para 35. Van Rooyen para 32; S v Basson 2007 (3) SA 582 (CC) para 27

16 26.4. A key aspect of judicial independence is security of tenure. 29 27. This court held in Van Rooyen that the requirement of judicial independence requires both actual independence and an appearance or perception of independence. 30 It recently again emphasized the importance of the public perception of independence in Glenister: Whether a reasonably informed and reasonable member of the public will have confidence in an entity s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence. 31 28. This court recognised in De Lange 32 and reiterated in Van Rooyen 33 that the Constitution itself differentiates between the different courts and that the most rigorous and elaborate conditions of judicial independence need not be afforded to all courts. The Constitution differentiates in the first place between the judges of the superior courts and all other judicial officers. Within the ranks of the judges of the superior 29 30 31 32 33 De Lange para 70; Van Rooyen para 29 Van Rooyen para 32 Glenister v President of the RSA 2011 (3) SA 347 (CC) para 207 De Lange v Smuts 1998 (3) SA 785 (CC) para 72 Van Rooyen v The State 2002 (5) SA 246 (CC) paras 20 to 27

17 courts, it also differentiates between the judges of the High Court, the Supreme Court of Appeal and the Constitutional Court respectively. This much is apparent from the following provisions of the Constitution relating to the protection of judicial independence: Concourt SCA High Court Other 1 Principle 165 165 165 165 2 Appointment 174(3) and (4) 174(3) and (6) 174(6) 174(7) 3 Acting appointment 175(1) 175(2) 175(2) 4 Term of office 176(1) 176(2) 176(2) 5 Remuneration 176(3) 176(3) 176(3) 6 Removal 177 177 177 174(7) 29. The Constitutional Court is at the top of this hierarchy. The independence of its judges are thus afforded the most rigorous and elaborate protection. The Chief Justice is at the pinnacle of the entire judiciary and the protection of his or her independence is thus paramount. 30. The non-renewability of the terms of office of Constitutional Court judges in terms of s 176(1) of the Constitution, is an important part of the protection of their judicial independence. The Constitution itself affords the same protection to the Public Protector in terms of s 183 and the Auditor-General in terms of s 189 of the Constitution. Section 12(1) of the National Prosecuting Authority Act 32 of 1998 also employs this mechanism for the protection of the independence of the National Director of Public Prosecutions.

18 31. This court recently articulated the rationale for this protection in Glenister when it drew attention to the dangers inherent in a renewable term of office: A renewable term of office, in contradistinction to a non-renewable term, heightens the risk that the office-holder may be vulnerable to political and other pressures. 34 32. We accept that a non-renewable term of office is not a necessary ingredient of the judicial independence of all courts. 35 But it is an important mechanism which the Constitution has chosen to employ in the protection of the judicial independence of all Constitutional Court judges including the Chief Justice. 33. The only exception to the requirement of a non-renewable term of office permitted by s 176(1), is one made by an act of parliament. Section 8(a) accordingly violates the principle of judicial independence insofar as it permits the President to extend the term of office of any Chief Justice of his choice. 34. This conclusion is fortified by the recent decision of the Court Martial Appeal Court of Canada in Le Blanc. 36 The court held that legislation which provided for renewable terms of office for military judges was incompatible with the right of an accused to be tried by an independent and impartial tribunal: 34 35 36 Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) para 223. This court for instance held in Van Rooyen v The State 2002 (5) SA 246 (CC) paras 150 to 155 that it was not a necessary ingredient of the protection of the judicial independence of magistrates. Le Blanc v The Queen 2011 CMAC 2 (2 June 2011)

19 It is important for the accused person that the judge not be, and not appear to be, beholden to these five members of the chain of command, that his or her security of tenure is not subject to reappointment and that his or her institutional independence provides the accused with the assurance of a fair and equitable trial. 37 The accused person must also be able to be confident that the sentence he or she received was imposed by a military judge who enjoys the constitutional protection required to ensure the legitimacy of the sentence. I do not believe that five-year renewable terms for military judges provide the necessary constitutional protection, especially if you consider the added fact that it was considered necessary to give such protection to civilian judges exercising the same functions. 38 (our emphasis) The court held that provisions of this kind almost assuredly, raise a reasonable apprehension in a reasonable and right-minded person that this independence may be undermined by external interference, in this case, that of the Minister. 39 35. This approach is also supported by the views of the former Lord Chief Justice of England and Wales, Lord Bingham. In dealing with the principle of judicial independence, he has stated. [The principle of judicial independence] calls for decision-makers to be independent of local government, vested interests of any kind, public and parliamentary opinion, the media, political parties and pressure groups, and 37 38 39 Para 52. Para 54. Para 62.

20 their own colleagues, particularly those senior to them. In short, they must be independent of anybody or anything that might lead them to decide issues coming before them on anything other than the legal and factual merits of the case as, in the exercise of their own judgment, they consider them to be. There would be an obvious threat to that independence if a decisionmaker s salary or tenure of office were dependent on the acceptability of his judgments to those affected by them. A similar threat would arise if (as has happened in other countries but scarcely ever, in recent years, in the UK) a decision-maker s prospects of promotion could be blighted because his judgments were unwelcome to the powers that be. 40 (our emphasis) 40 Bingham, T., The Rule of Law, (2010) at p92.

21 SECTION 174(3) OF THE CONSTITUTION 36. Section 174(3) of the Constitution permits the President to appoint the Chief Justice but only after he has consulted the Judicial Service Commission and the leaders of parties represented in the National Assembly: The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and Deputy Chief Justice and, after consulting the Judicial Service Commission appoints the President and Deputy President of the Supreme Court of Appeal. 37. This court recognised the importance of the role of the Judicial Service Commission as a check on the power of the executive in making judicial appointments including that of the Chief Justice: The JSC contains significant representation from the Judiciary, the legal professions and political parties of the opposition. It participates in the appointment of the Chief Justice, the President of the Constitutional Court and the Constitutional Court Judges, and it selects the Judges of all other courts. As an institution it provides a broadly based selection panel for appointments to the Judiciary and provides a check and balance to the power of the Executive to make such appointments. 41 (our emphasis) 38. The fact that the President is not bound by the recommendations of the JSC does not undermine the importance of the requirement that he consult with it before appointing 41 Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) para 124

22 the Chief Justice. It nonetheless constitutes an important check on the exercise of executive power. 39. This is made clear by the decision of this court in Van Rooyen. It dealt with the provisions of the Magistrates Act which empowered the Minister of Justice to appoint magistrates after consultation with the Magistrates Commission. This court held that, even though the Minister was not bound by the recommendations of the Magistrates Commission, the role of the Commission was an important check on the power of the Minister: [T]he appointment of a Magistrates Commission, presided over by a Judge, and drawn from diverse sections of the legal community to advise the Executive in relation to the appointment of magistrates is a check on the exercise of executive power, and not a flaw in the appointment process. 42 40. Section 8(a) of the Judges Remuneration Act allows the President to make ad hoc extensions of the term of office of any Chief Justices of his choice for any period of his choosing. He may do so without any prior consultation of the kind prescribed by s 174(3). 41. We submit with respect that this implication of s 8(a) violates the requirement of s 174(3) which only permits the President to appoint a Chief Justice after due consultation. The respondents say that consultation is unnecessary for the extension of the term of office of the Chief Justice because it would have occurred at the time of his initial appointment. But their argument misses the point. The purpose of the requirement of prior consultation is not merely to determine the candidate s fitness for 42 Van Rooyen para 109.

23 office but also to determine whether he or she is the best and most appropriate candidate for the office of Chief Justice. It is necessarily a comparative evaluation which takes account, not only of the qualities of the incumbent, but also of those who might take his place. 42. By dispensing with the need for any consultation, s 8(a) thus circumvents the important check on the President s power of appointment in terms of s 174(3). The result is that there are no checks and balances in the exercise of the President s discretion in violation of the constitutional scheme and s 174(3) in particular.

24 REMEDY 43. It follows from the invalidity of s 8(a) of the Judges Remuneration Act that this court must in terms of s 172(1)(a) declare both the section and the President s decision made in terms of it to be invalid. 44. If this court were to make an order of invalidity after the Chief Justice s term of office expires on 15 August 2011, it would for obvious reasons be undesirable to let the order operate with retrospective effect. We accordingly submit that it should only be made with prospective effect. 45. The Minister asks for any order of invalidity to be suspended but does not advance any justification for it. But it is a well-established principle that a party who seeks suspension of an order of invalidity must provide the court with justification for it: [A]s a general rule, a government organ or other party wishing to keep an unconstitutional provision alive should at least indicate the following: what the negative consequences for justice and good government of an immediately operational declaration of invalidity would be; why other existing measures would not be an adequate alternative stop-gap; what legislation on the subject, if any, is in the pipeline; and how much time would reasonably be required to adopt corrective legislation. Parties interested in opposing such an order should be given an opportunity to motivate their opposition. 43 43 Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC) para 37. See also Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) para 33

25 46. The respondents have not advanced any justification for suspension, have publicly rejected proposals for remedial legislation, have not made any commitment or proposal to the contrary, have not expressed any willingness to cure the defect in s 8(a) and have not given any indication of the time-frame within which it will be done. We are accordingly unable to address their request for suspension. We will do so more fully if and when they put flesh to the bones of their request. 47. 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 who might be appointed in his stead. We are with respect unable to make such a comparison and it would be invidious for us to do so. 48. The position of CALS and CASAC on remedy is accordingly that they are not in principle opposed to the possibility of suspension. The respondents have however not advanced any justification for it. If and when they do, we shall address the issue more fully.

26 PRAYER 49. CALS and CASAC ask for an order in terms of prayers 1 to 5 of their notice of motion subject to the following: 49.1. If the orders of invalidity are made after 15 August 2011, they should only be made with prospective effect. 49.2. The first and second respondents should be ordered jointly and severally to pay the applicants costs including the costs of three counsel. 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

27 TABLE OF AUTHORITIES AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) AParty v Minister for Home Affairs; Moloko v Minister for Home Affairs 2009 (3) SA 649 (CC) Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae) 2005 (1) SA 580 (CC) Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) De Lange v Smuts 1998 (3) SA 785 (CC) Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (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) Harksen v Lane 1998 (1) SA 300 (CC) In re Constitutionality of the Mpumalanga Petitions Bill, 2000 2002 (1) SA 447 (CC) Le Blanc v The Queen 2011 CMAC 2 (2 June 2011) Minister of Home Affairs v Fourie (Doctors for Life International and Others, Amici Curiae) 2006 (1) SA 524 (CC) Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA SA 1127 (CC) Mkontwana v Nelson Mandela Metropolitan Municipality and Another 2005 (1) SA 530 (CC) S v Basson 2007 (3) SA 582 (CC) Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC) Beinart The Rule of Law 1962 Acta Juridica 99 Bingham, T., The Rule of Law, (2010) at p92