Black Lawyers Association question need for retired justices to serve at Concourt

Former Constitutional Court Justice Zak Yacoob.

Former Constitutional Court Justice Zak Yacoob.

Published Feb 21, 2024


The Black Lawyers Association (BLA) has raised questions over whether it is necessary to appoint retired justices in an advisory role at the Constitutional Court.

This comes as questions have been raised by others about the impartiality of retired justices, especially those who have been vocal since retirement about their political views.

Last week Chief Justice Raymond Zondo said Justice Zak Yacoob, along with retired Justice Johan Froneman, would be fulfilling a support service to the ConCourt justices because of the huge workload they faced since the expansion of the court’s jurisdiction.

He was replying to a letter from the Council for the Advancement of the Constitution (Casac) which sought clarity on retired Justice Yacoob’s role at the ConCourt, especially as he had served a non-renewable 12-year term at the court, and he was therefore not eligible to be reappointed.

Justice Zondo said Justice Yacoob would not take part in the adjudication of any matter but would only render a support service. Justices Yacoob and Froneman would be volunteering this service which entailed reading new applications and preparing a draft memorandum in respect of each new application, he said.

Justice Yacoob on Tuesday said he would not comment on the matter.

Nkosana Francois Mvundlela, president of the BLA said the Chief Justice (CJ) is bestowed with the responsibility of ensuring there is adequate capacity for the administration of justice at the apex court.

“Such responsibility must however, take society into confidence so that we are able to say there will be development of skills for future possible appointments in the ConCourt. It would appear the appointment of the retired justices does not assist such a process.”

Mvundlela added: “The actual work the CJ states those retired justices will be doing must in the ordinary course be done by the justices who have to end up processing those matters.

“As the BLA, our preliminary view is that the function they will be doing is judicial work which they cannot do beyond the 12 years they served in the ConCourt.”

The BLA said it is concerned about the message the “CJ may be inadvertently sending to aspirant Constitutional Court Justices, i.e. that they may not be capable to deal with such matters as the sitting Justices”.

“These appointments may have the effect of imposing a seniority on the current justices on the decisions made by these retired justices which may affect the independence of the current justices not to disagree with their seniors.

“Justices are paid for life and their services can be used as and when required. However, we are concerned about the perception of extension of the maximum of 12-year tenure of ConCourt justices, which matter was also previously decided by the ConCourt itself.”

Political analyst Sipho Seepe said society expected appointments to the Constitutional Court to be “discerning and circumspect”.

“When people are appointed to that court they should enjoy the confidence of society and those they preside over.

Society will question if the right person has been appointed to take up a position in such a high office. This sends the wrong message... especially as retired judges must be seen to be impartial and impeccable in their standing,” Seepe said.

Legal expert Mpumelelo Zikalala said: “There needs to be a better explanation of what the support service entails because if it is case management, then that is a problem.

“The Chief Justice must give as an assurance that there will be no interference in cases.”

The Mercury