Justice Alliance of South Africa v President of the Republic of South Africa and Others; Freedom Under Law v President of the Republic of South Africa and Others; Centre for Applied Legal Studies and Another v President of the Republic of South Africa and Others

The President of the Republic of South Africa purported to extend the term of office of Chief Justice Sandile Ngcobo by five years in terms of section 8(a) of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001. This occurred shortly before the Chief Justice’s non‑renewable 12‑year constitutional term expired in August 2011. Several civil society organisations and public‑interest bodies approached the Constitutional Court directly, challenging the constitutionality of section 8(a) of the Act and, if valid, the President’s conduct in extending the Chief Justice’s term. The applications were heard urgently because the Chief Justice’s term was about to expire.

Section 8(a) of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 was declared unconstitutional and invalid. The President’s decision to extend the Chief Justice’s term of office was set aside. The Chief Justice’s term accordingly expired on 14 August 2011.

This case is a leading authority on judicial independence and the separation of powers in South African constitutional law. It affirms that security of tenure for judges, especially the Chief Justice, must be protected from executive discretion. The judgment clarifies that Parliament may not delegate to the Executive the power to determine extensions of judicial office, reinforcing constitutional supremacy and the rule of law.