The Council for the Advancement of the Constitution (Casac) has again written to Chief Justice Raymond Zondo to raise concerns over his appointment of retired Constitutional Court justices to assist with new applications in the apex court.
Casac said it had written to Zondo again as his clarification letter last week only compounded their concerns.
Two other legal NGOs – Freedom Under Law (FUL) and the National Association of Democratic Lawyers (Nadel) – wrote to Zondo this week, with the latter calling on him to reconsider his decision, saying that it reserves its right to challenge the decision by way of judicial review.
Last week, Zondo said that Justices Zak Yacoob and Johan Froneman would be fulfilling a support service to the Concourt justices because of the huge workload faced by the court since the expansion of its jurisdiction.
The Chief Justice said Yacoob and Froneman would be volunteering this service.
Zondo’s clarification was in response to a letter from Casac which wanted clarity on the role to be played by controversial retired Justice Yacoob at the court.
Casac executive secretary Lawson Naidoo said they had written to Zondo’s office to find out what exact role Justice Yacoob would be playing, especially as he has served a non-renewable 12-year term at the Constitutional Court, and he is therefore not eligible to be reappointed.
Zondo said that Justice Yacoob would not take part in the adjudication of any matter and would only render a support service.
Naidoo on Wednesday that they had written to Zondo once again to highlight their concerns and were not satisfied with his response.
“Quite clearly, the retired justices will carry out judicial functions and not administrative ones.”
Naidoo said that retired justices had served a non-renewable 12-year term at the Constitutional Court and their reappointment was in violation of the Constitution.
“Their seniority will also come into question because their opinion will hold more sway than if it comes, for example, from a law clerk.”
Casac had suggested to Zondo that if the court was overwhelmed it should employ more law clerks “who will be accountable to a particular justice”.
Nadel said it fully understood the demands placed on the court’s 11 justices and their possible needs for additional judicial hands but the Constitution says judges are appointed for a non-renewable term of 12 years or until they reach the age of 70.
Nadel in its letter to Zondo, seen by “The Mercury,” said the proposal was unconstitutional and had the potential to create a perception that the sitting justices were not fit for office.
The legal NGO urged the Chief Justice to reconsider the decision and said it reserves its right to challenge the decision by way of judicial review, saying it is 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.
They pointed out in their letter that litigants whose applications to the court are refused without oral hearings need the assurance that every member of the court has considered their own application and decided against granting leave.
FUL in its letter to Zondo said granting leave to appeal was regulated by important procedures of the court.
It said appointing retired justices to advise on the outcome of pending cases may amount to a circumvention of the constraints the Constitution itself has imposed and that the work was not administrative in nature but part of the judicial function vested in the 11 justices and in them alone.
FUL said the views of Concourt justices should not be shaped by memoranda designed to shape them, whether from retired colleagues, professors or practitioners, advising on the outcome.
It said to outsource the court’s judicial role would be an abdication of its constitutional duty.
Nkosana Francois Mvundlela, president of the Black Lawyers Association said the association will meet this weekend and consider writing to Zondo over their concerns.