The Constitutional Court has ordered the admission of IFP MP Mario GR Oriani-Ambrosini as an amicus curiae [friend of the court] in the application launched by a host of legal and constitutional watchdogs to challenge the constitutionality of the action of President Zuma which sought to extend the term of office of the Chief Justice.
Within hours of President Zuma having taken such action, Dr Oriani-Ambrosini was the first to go on record identifying its unconstitutionality. He said then, “What the President did is either a constitutional breach or a constitutional blunder”.
In the Justice Committee, together with the Hon. Smut and Hon. Swart, Dr Oriani-Ambrosini sought to correct this problem by prompting the Committee to introduce a Bill, as a Committee Bill. Once passed, this Bill would have extended the term of office of the Chief Justice in the constitutionally permissible way. The Bill was an ad hominem Bill dealing only with the extension of this Chief Justice, which is what the constitution requires to achieve what President Zuma tried to do. All other parties represented then in the Committee agreed to this approach, but the ANC shot it down on the grounds that it implied a criticism of the President.
On June 23, 2011 the National Assembly adopted a resolution in which it indicated that “in principle” it would support the extension of the term of office of the incumbent Chief Justice. The IFP did not support this resolution, not because it disagreed with its merits, but on account of it being inappropriate, as the matter is sub judice, and pre-emptive of portfolio committee deliberations if a Bill in respect of the matter were to be tabled in Parliament.
Possibly as a way of avoiding criticizing the President, on July 7, 2011, the Minister of Justice published a Bill which is not an ad hominem Bill, but a Bill of general application to anyone who finds himself in the same situation in which the incumbent Chief Justice happens to be; and applies only to the Chief Justice and the President of the Supreme Court of Appeal not including the other Justices as the Constitution requires.
This Bill presents a different approach in respect of the extension of the term of office of Chief Justice by a means which in itself could also be unconstitutional as the actual text of the Constitution seems to require an ad hominem Bill, viz. a separate Bill every time the term of office of a Justice is to be extended.
In his intervention as an amicus curiae, Oriani-Ambrosini has alerted the Constitutional Court to these two legislative alternatives with which the unconstitutional presidential action can be cured, and suggested that the latter, namely the Bill introduced by the Minister of Justice, may be affected by similar unconstitutionality.
It not uncommon for the Constitutional Court to indicate what corrective actions may cure a defect of constitutionality and to assist the legislator in interpreting the Constitution as it applies to measures to be adopted to cure such defect of constitutionality.
