ConCourt may stop using retired judges to help with appeal applications

The use of retired justices, including Zak Yacoob, at the Constitutional Court to help with applications for leave to appeal will be reviewed at a meeting next week, said chief justice Raymond Zondo’s office on Tuesday. 

Zondo was responding to several “letters of concern” from legal organisations last week raising red flags about whether the new measure was constitutional.

But Zondo said on Tuesday the idea was always to have a trial run and, if it didn't work as envisaged, the measure could be discontinued.

The appointment of Yacoob was made in terms of the Judges' Remuneration and Conditions of Employment Act to render a “service”.

The idea was that the retired judge would read applications for leave to appeal that are referred to him by serving judges of the apex court and prepare a memo on them for the serving judges, who could adopt the memo, amend it or discard it.

Zondo said the retired judge would not “take part in the adjudication of any matter ... he renders only a support service.”

Retired justices would be rendering this service on rotation with Yacoob starting it off, followed by Johan Froneman and then others. Zondo said the reason was the huge increase in workload after the ConCourt’s jurisdiction was expanded in 2013.   

But the Council for the Advancement of the South African Constitution (Casac), Freedom Under Law (FUL) and the National Association of Democratic Lawyers (Nadel) warned in letters last week that deciding applications for leave to appeal was the “core” of the court’s judicial function and belonged only to its serving judges.

The constitution allowed for a single, non-renewable term for ConCourt judges, said Nadel. FUL and Casac said there should be no outside influence on the court’s members when it made its decisions. 

In a letter back to them on Tuesday, Zondo’s office thanked the legal organisations for their concerns and reminded them that the measure was still “at trial stage”.

One of the challenges that emerged was the non-availability of retired justices: “Some of the retired justices ... are involved in one or other commission or are involved in Judicial Conduct Committee or tribunal work or arbitrations. Another one is unavailable due to continued ill-health and another spends most of the time overseas.” 

He said if on review it was found the measure was not working or was not working the way it was hoped, it was likely to be discontinued. In such a case, the concerns raised by the legal organisations “will become academic”, said Zondo. 

The decision about the fate of the measure will be announced in the media, he said.

“If after the announcement there is still a need to deal with your concerns, a response dealing with them will be sent.”