Chief justice Raymond Zondo moots constitutional amendment

The chief justice suggested changing the requirement that members of the apex court decide new applications

Chief Justice Raymond Zondo has mooted a constitutional amendment to ease the case flow at the apex court after deciding not to continue the use of retired justices to help consider new applications to the court. 

In a statement on Thursday, Zondo said a trial programme in which former constitutional court justices Zak Yacoob and Johan Froneman were weighing new applications and advising whether these should be heard by the court would be scrapped. 

This comes after the practice — and the chief justice’s explanation that they were providing an administrative support service — was challenged by the Council for the Advancement of the South African Constitution (Casac).

Casac submitted that deciding whether to grant or dismiss applications was “a core judicial function which has been entrusted by the Constitution to members of the court”.

“The preparation of a memorandum on a new application, presumably with a

recommendation on whether such an application merits the court’s attention, is not

an administrative function and is purely judicial in nature.”

It said given this nature of the task the judges were performing, it had to question Zondo’s view that it fell within the categories of services retired judges can be called upon to extend in terms of section 7 of the Judges’ Remuneration and Conditions of Employment Act

It added that the programme may have implications for the independence of the court because it was hard to know to what extent judges felt bound by the recommendation of two esteemed former members of the court.

“We are concerned about the influence they are able to assert over members of the court, and particularly the more junior or acting justices, through their memoranda.

“That members of the court may reject or amend a draft memorandum prepared by

the retired justices does not ease our discomfort,” it said, adding that it was not clear whether there were instances in which the advice of Yacoob and Froneman was rejected.

The programme was introduced to deal with the backlog in processing new applications, which increased dramatically a decade ago when the jurisdiction of the court was expanded, and to allow sitting judges more time to prepare judgments. The court last year received some 350 new applications.

It is reliably understood that Zondo sought the support of the justice ministry when introducing the programme but that it was not forthcoming.

In his statement, Zondo reiterated that it was intended to improve the quality of the service the court renders to the public and suggested that critics of the programme had not properly understood the legal basis on which the retired justices rendered assistance.

He stressed that there was a precedent in other countries to have retired judges assist the highest courts in this manner, and insisted that Yacoob and Froneman were providing a service routinely performed by law clerks at the court but able to do so better given the depth of their experience.

Zondo said the idea had also been that most retired judges would participate in the programme, not that it would be confined to just Yacoob and Froneman. But it transpired that most were unavailable.

“It was never contemplated that it would be the same retired Justices who would render this support service all the time. Given this unavailability of many of the retired justices of the court, it was decided to discontinue the programme.”

Zondo said he and his colleagues believed that two alternative measures now needed to be pursued.

The one was to make use of experienced lawyers, in addition to law clerks, to help to prepare new memoranda on new applications to the court.

“There are many apex courts around the world who have this arrangement. They include the US supreme court, the supreme court of Canada and the supreme court of Kenya.”

The other was to amend the Constitution to the effect that the 11 members of the court would no longer sit when deciding new applications but do so in panels of three.

An amendment was necessary because section 167(2) of the Constitution prescribes that a matter that serves before the court must be heard by at least eight judges, and this included new applications.

“Accordingly, a constitutional amendment is needed to make it possible for the justices of the constitutional court to dispose of new applications in panels rather than sitting en banc. 

If new applications could be considered by panels of three judges, it would mean a two-thirds reduction in the amount of time each member of the court spent in this manner, the chief justice said in a supplementary 15-page memorandum on the decision.

The court would still sit when hearing and deciding cases which, Zondo stressed, is its core function.

“Time spent weeding out unmeritorious new applications is time taken away from that core function and so it is time that is spent at a serious cost to the South African legal system.”

Zondo said he and his colleagues at the court had always considered a constitutional amendment a last resort and had hoped that the use of retired justices could prove a viable alternative. 

“Up to this stage the justices of the constitutional court have tried to have this problem solved without proposing an amendment of the Constitution because they appreciate that an amendment of the Constitution must be a measure of last resort in trying to resolve any problem.”