Retired justices’ opinions should be discarded, says BLA

Retired Justices Zak Yacoob and Johan Froneman.

Retired Justices Zak Yacoob and Johan Froneman.

Published Mar 20, 2024


The Black Lawyers Association (BLA) has called for any opinions given to the Constitutional Court by retired Justices Zak Yacoob and Johan Froneman to be discarded and for the sitting justices to reconsider these matters.

Last week, Chief Justice Raymond Zondo said he had decided to discontinue the use of retired justices to help consider new applications to the Constitutional Court after legal non-governmental organisations and other concerned bodies challenged the chief justice’s explanation that they were providing an administrative support service.

The Council for the Advancement of the Constitution (Casac) twice wrote to Justice Zondo, with concerns also being raised by BLA, Freedom Under Law and the National Association of Democratic Lawyers (Nadel).

Casac in its letter said that deciding whether to grant or dismiss applications was a core judicial function which has been entrusted by the Constitution to members of the court.

It said given the nature of the task performed by the justices, it had to question Justice Zondo’s view that it fell within the categories of services that retired judges can be called upon to extend in terms of section 7 of the Judges’ Remuneration and Conditions of Employment Act.

Casac said the programme may have implications for the independence of the court because it was hard to know to what extent judges felt bound by the recommendation of two senior former members of the court.

Justice Zondo, in a statement, said a trial programme in which Justices Yacoob and Froneman were weighing new applications and advising whether these should be heard by the court would be stopped.

“The initiative to use the services of the retired Justices of the Constitutional Court to render this service was an initiative of the chief justice aimed at alleviating the workload on the serving justices and to improve the quality of the service rendered by the Constitutional Court to the public.

“This initiative was embraced by the serving justices of the Constitutional Court and the Minister of Justice and Correctional Services.”

Justice Zondo said the programme was introduced to deal with the backlog in processing new applications, which increased dramatically a decade ago when the jurisdiction of the court was expanded, and to allow sitting judges more time to prepare judgments.

President of the BLA, Nkosana Mvundlela, said any decisions made by retired Justices Yacoob and Froneman “should not carry and we expect the justices to proceed as if the decision has not been made by the retired justices”.

“We do not think any decisions taken by the retired justices should be necessary and we want to avoid a situation where those justices made their view known and it then influences the process.

“Their decisions must be discarded and the perception must not be that this is a continuation of the work that they have started,” Mvundlela said.

Dan Mafora, a senior researcher at Casac told SAfm that there was no process that was open to the public before the measure was put in place, and the lack of transparency was concerning.

He said Justices Yacoob and Froneman are former justices of the Constitutional Court who have finished their non-renewable 12-year terms.

“They were brought back to provide an advisory service to the serving justices of the Constitutional Court.

“The difficulty with that is that in providing this service they would read these applications, prepare memoranda and give a recommendation as to whether or not a case should be heard.

“Now, that for us raised alarm bells because that to us seems to be the work that should be done by the serving justices of the court, because ultimately, it affects whether or not a case is going to be heard,” Mafora said.

The Mercury