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case summaries.docx - Justice Alliance v President of the...

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Justice Alliance v President of the Republic of South Africa and OtherFactsRelying on s 8(a) of the, the President sought to extend the term of office of the former CJ for a periodof 5 years (his term of office was about to expire on the 14thAug 2011). The central questions werewhether s 8(a) of the Act was compliant with s 176(1) of the Constitution, which provides that theterm of office of a CC judge may be extended by an Act of Parliament; and whether the parliamentmay differentiate between the CJ and the other justices in the CC when determining their term ofoffice. The CC indicated that s 8(a) confers on the President an executive discretion to extend the term ofoffice of the Chief Justice and to set the period of such extension. The extension of term of office mayonly take place if the President decides to extend the term of office and the incumbent Chief Justiceagrees to the extension. The President seems to have unfettered discretion in the exercise of s 8(a)powers since there is no requirement to consult.1The Act left therefore, at the exclusive discretion ofthe President to decide whether to appoint a new Chief Justice or to extend the term of office of theincumbent CJ.No guidelines were given by the Parliament on how the President should exercise that discretion. Thewording of s 176(1) indicates that it is the Parliament who must take the very significant step ofextending the term of office of a CC judge. According to the Court, in extending the term of office ofa CC judge, s 176(1) requires direct action by the Parliament.2Such power may not be delegated tothe President. As a consequence, s 8(a) ‘usurps the legislative power granted only to Parliament andtherefore constitutes an unlawful delegation.The Court went on to assess the compatibility of s 8(a) with the requirement of judicial independence.As stated by the Court, ‘section 176(1) does not merely bestow a legislative power, but by doing soalso marks out Parliament’s significant role in the separation of powers and protection of judicialindependence’ S 8(a) violates the principle of judicial independence. The open-ended discretion of thePresident raises a reasonable perception that the independence of the Chief Justice and the judiciarymay be undermined by the intervention of the Executive. Judiciary must be seen as to be free fromexternal influence. Singling outS 176(1) does not permit the singling out of an individual judge based on his/her individual identity orposition within the Court. Although the procedure for appointing the CJ and the DCJ are distinct fromother appointments on the CC, they join the other members in constituting the Court and in terms of12
discharging of judicial functions; their role is the same with that of their fellow judges. Distinctionsbased on age are permissible because age affects everyone, as well as previous judicial experiencewhich can be applied neutrally; this refers to s 4 of the Act, which the Court implies that are

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Term
Fall
Professor
NoProfessor
Tags
Law, Separation of Powers, Chief Justice of the United States

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