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JUSTICE ALLIANCE OF SOUTH AFRICA v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICAAND OTHERS2011 (5) SA 388 (CC)DFlynote : SleutelwoordeConstitutional law— Separation of powers — Between Executive and JudiciaryF —Term of office of Constitutional Court judge — Constitution allowing Parliament toextend term — Section 8(a)of Judges' Remuneration Act giving power to President toextend term of Chief Justice — Section 8(a)allowing for unlawful delegation oflegislative power — Non-renewable term of office important feature of rule of law,separation of powers and independence of Judiciary — Singling out of single judge forextension ofGterm not permitted — Section 8(a)unconstitutional and violatingprinciple of judicial independence — Judiciary must be seen to be free from externalinterference — Constitution, s 176(1) and Judges' Remuneration and Conditions ofEmployment Act 47 of 2001, s 8(a).Headnote : KopnotaSection 176(1) of the Constitution provides that a Constitutional Court judgeH holdsoffice for a non-renewable term of 12 years or until he or she reaches the age of 70years, whichever happens first, except where an Act of Parliament extends the term ofoffice of a Constitutional Court judge. Section 8(a)of the Judges' Remuneration andConditions of Employment Act 47 of 2001 (Remuneration Act) allows the President torequest a Chief Justice who is about to be discharged from active service to continueofficeI as the Chief Justice for an additional period, determined by the President, if theChief Justice accedes to that request.Section 176(1) must be interpreted against the background of the constitutionalimperatives of the rule of law, separation of powers, and the independence of theJudiciary. A non-renewable term of office is an important feature of these constitutionalimperatives. While it is true that s 176(1) of theJ Constitution creates an exception tothe requirement that Constitutional2011 (5) SA p389Court judges have fixed terms, it explicitly vests such authority in ParliamentA only,
thereby safeguarding the independence of the Judiciary. However, s 8(a)of theRemuneration Act, by permitting the President to extend the term of office of the ChiefJustice, shifts all the power granted by s 176(1) from Parliament to the Executive,thereby surrendering and take over the exclusive power of Parliament to extend aConstitutional Court judge's term of office. Not only does this amount to an unlawfulBdelegation of a legislative power, but the conferral of an open-ended discretion on theExecutive also violates the principle of judicial independence, with the result thats 8(a)is both unconstitutional and invalid.(Paragraphs [20], [62], [66] – [68], [73] and [116]at 398A – B, 409A – B, 409H – 410C, 411E – F and 421E.)CJudgmentThe court:EIntroduction[1] The three applications for direct access before us arise from a decision by thePresident of the Republic of South Africa to extend the term of office of the Chief Justice

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Term
Fall
Professor
NoProfessor
Tags
Law, Separation of Powers, Constitutional court

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