The Council for the Advancement of the South African Constitution (Casac) has written to chief justice Raymond Zondo seeking clarity and expressing “concern” after Sunday World reported that retired ConCourt justice Zak Yacoob had been appointed to the Constitutional Court to “advise the 11 justices of the court on which appeal cases to dismiss and which to entertain”.
Casac’s executive secretary Lawson Naidoo wrote that it would be unconstitutional to outsource the court’s judicial role to anyone who was not a member of the court.
“This would be an abdication of constitutional duty by members of the court.”
The Sunday World report said Yacoob had confirmed his appointment, saying it was made by justice minister Ronald Lamola. However, the media report did not say under what law Yacoob had been brought in, nor did it specify exactly what his role would be.
Lamola’s spokesperson Chrispin Phiri on Wednesday confirmed “the chief justice requested the appointment of justice Yacoob, which the minister agreed to”.
He referred TimesLIVE Premium to section 7(1)(c) of the Judges Remuneration and Conditions of Employment Act, which allows former justices of the Constitutional Court to voluntarily perform a “service”, and to the definition of “service” under the act, which includes “any other service which the minister may request him or her to perform”.
“As to his role at the ConCourt, that would best be addressed by the chief justice,” said Phiri.
The chief justice said, via his office, that he was unable to answer questions by TimesLIVE Premium’s deadline, but he undertook to give answers by early next week.
TimesLIVE Premium will publish a follow-up when the answers are received.
The “role and purpose of his appointment” was one of the questions raised by Casac in its letter, sent on Monday. Casac also asked whether Yacoob’s role was “similar to the role performed by law clerks in vetting new applications [and] whether, and if so how, Yacoob would interact with the members of the court or the law clerks”. He further asked what the implications of the appointment would be for the court’s resources.
He said a decision to set down or dismiss an application that came to the Constitutional Court was “a core judicial function that is entrusted by the constitution to members of the court”.
Yacoob was “constitutionally barred” from performing any of the court’s judicial functions.
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