Questions still linger over retired Justice Yacoob’s Constitutional Court role

Justice Izak Yacoob.

Justice Izak Yacoob.

Published Feb 19, 2024


The Council for the Advancement of the South African Constitution (Casac) says there are still unanswered questions over the appointment of retired justices, including Zak Yacoob, to the Constitutional Court despite Chief Justice Raymond Zondo’s response on the matter.

Justice Zondo said that Justice Yacoob would be providing a support service to the justices of the Concourt because of the huge workload faced by the court’s justices since the expansion of the jurisdiction of the court.

Last month, the “Sunday World” reported that it was believed that Justice Yacoob was hired to look at all the appeal cases before the Concourt and that he would have the power to advise the 11 justices on which appeal cases to dismiss and which to entertain.

Casac then wrote to Justice Zondo, asking for clarity on what Justice Yacoob would be doing at the court.

Casac executive secretary Lawson Naidoo said that they had written to Justice Zondo’s office to find out what role Justice Yacoob would be playing, especially as he has served a non-renewable 12-year term at the Concourt, and he was therefore not eligible to be reappointed.

Justice Zondo in response to media requests clarified that Justice Yacoob would not take part in the adjudication of any matter and would only render a support service.

The chief justice’s office said at any one time there would be two retired justices of the Concourt rendering this support service to the serving justices and they would render the service for a few months and then another two retired justices would be given a chance to render the service.

The office added that Justice Yacoob and retired Justice Johan Froneman would be volunteering this service.

Justice Zondo said that the retired judges were requested to render a service to the serving justices of the court in terms of section 7 of the Judges’ Remuneration and Conditions of Employment Act read with paragraph (d) of the definition of the word “service” in section 1 of that act.

The service entailed Justice Yacoob reading new applications that were referred to him “and prepare a draft memorandum in respect of each new application referred to him”, said the chief justice’s office.

“Such a draft memorandum is then sent to the chief justice who will send it to a serving justice of the Constitutional Court who will have been allocated that new application.

“That justice may, upon reading the application papers, adopt such a draft memorandum as his or her own if he or she is satisfied with it or reject it and prepare a new memorandum if he or she is unhappy with it or he or she may amend it as he or she deems fit.”

The serving justice would then circulate to the other serving justices “a memorandum that he or she is happy with and at conference the serving justices will decide the new application”, said Justice Zondo's office.

The chief justice's office said that the court's justices had “a huge workload arising from the expansion of the jurisdiction of the Constitutional Court in circumstances where the number of justices doing the work has not increased”.

Naidoo on Sunday said Casac had noted Justice Zondo’s clarification but this should have been done earlier for “full disclosure and greater transparency in the process and roles of retired justices”, especially as others will be playing similar roles.

He said while Justice Zondo had provided clarity, there were questions about whether it was appropriate for retired justices to play this role as it is a “task left to law clerks and researchers to judges who they are appointed to, as there is accountability” in this process.

“Ultimately, it is serving justices who must take accountability for decisions of that court,” Naidoo said.

Alison Tilley of civil society organisation Judges Matter said it would have been helpful for Justice Zondo to have provided an explanation immediately to avoid speculation.

“The role has been clarified as one of case management to make sure matters run smoothly rather than making determinations.

“This has been clarified and we regard it as resolved.” Tilley said.

The Mercury