A judicial crisis
Correspondent | Tuesday February 21, 2017 14:39
Justice Abednego Tafa has handed down judgement in the case in which there was a challenge against the power of parliament to abdicate its authority to the Executive on the number of Judges to be appointed to the CoA as well as the power of the Executive to Appoint CoA judges on more than one 3 year fixed term contract. I have several issues with the Judgment, though not with the result but the biggest problem is with the Order.
Tafa J found Section 4 of the CoA Act was unconstitutional in that the power of Parliament could not be delegated in the manner it was. He struck down the provision.
He then found that the appointment of Judges on more than one fixed term contract was unconstitutional and declared the appointment of 6 judges ultra virus the constitution. Incredibly he then suspended the Order as it related to section 4 of the CoA.
Having declared a provision of an Act to be unconstitutional Tafa has no power to then subsequently reinstate it albeit on a temporary basis. He has assumed he has this power from Constitutional Court judgments in SA.
The SA Constitutional court has, under section 172 (2) of the Constitution been given the right to make declarations on the validity of acts, laws etc and then suspend the implementation of such orders to enable the necessary authority the time to take remedial measures.
Bots has no such analogous provision. Nor can section 95 of the Constitution which gives the Court inherent power create the right to suspend a finding of constitutional invalidity. The Court has inherent powers not unlimited powers (it is confined by the powers under the constitution) and once it has found a provision to have violated the Constitution that is it. The Court can not reinstate it even on a temporary basis no matter how far reaching the consequences.
Although, perversely admittedly because it was in favour of the state that such an order was made, it could open the door for an appeal, though there are better grounds. But what will be interesting is who will hear the Appeal. Kirby can not sit as a member of the JSC. And Parliament will have to resort to moving on urgency to take corrective measures.
Govt and AoJ have been aware of this litigation for almost 2 years when the Statutory Notice was issued. The AoJ and Govt sat on the matter and it is now a crisis of untold magnitude. Interestingly having declared almost the entire CoA bench unconstitutionally appointed Tafa did not suspend that order. So currently there isn’t a SINGLE JUDGE at the CoA to hear this and other matters.
The public confidence in the Judiciary will be greatly tested and the claims of Executive encroachment into the Judiciary given validation.
Joao Carlos Salbany