The Council for the Advancement of the South African Constitution (Casac) has written to Chief Justice Raymond Zondo to find out what role controversial retired Justice Zak Yacoob will play at the Constitutional Court.
Reports in recent days have indicated that Yacoob will play an advisory role, including to look at all the appeal cases before the Constitutional Court.
He would also reportedly have the power to advise the 11 justices of the court on which appeal cases to dismiss and which to entertain.
Casac’s executive secretary Lawson Naidoo said they had written to Justice Zondo’s office to find out what exact role Justice Yacoob will be playing, especially as he has served a non-renewable 12-year term at the Constitutional Court, and he is therefore not eligible to be reappointed.
Naidoo, speaking to SAfm radio, said that there is no clarity on what role Justice Yacoob would be playing.
“There is no (clarity) as yet. And I think that’s causing a lot of concern around this issue of whether in fact, Justice Yacoob has been appointed to a role at the Constitutional Court and what the basis of that appointment is or may be, and exactly what role it is that he is going to be playing,” Naidoo said.
He said Justice Yacoob had finished serving a non-renewable 12-year term at the Constitutional Court and is not eligible to be reappointed to play any judicial role at that court.
“Casac (on Monday) wrote to the Chief Justice seeking clarity around these issues.”
Naidoo said Justice Yacoob cannot advise on which cases to hear and which cases not to hear as this would be a judicial function.
“In our opinion it would be unconstitutional if retired Justice Yacoob were to play a role in determining which cases the court should hear and which applications for appeal it should dismiss.
“That is a core judicial function, which is currently carried out by members of that court in the way that they share the workload among themselves,” Naidoo said.
He said while the increased pressure on the Constitutional Court with many more appeals, could be understood, “that is no excuse for breaching the constitutional foundations of judicial independence in order to overcome those challenges”.
Naidoo said this was not about Justice Yacoob as an individual.
“This is not really about Justice Yacoob, this is really about the principle of someone who served a full term at the Constitutional Court.
“It could be any of those judges who have done that and cannot lawfully play any other judicial role at that court.
“And I think we’ve been sidetracked into a discussion about Justice Yacoob and the controversial incidents but I don’t think that had he not been involved in those controversial incidents, it would make the appointment okay,” Naidoo said.
Justice Yacoob on Sunday told “The Mercury” that he had not confirmed his appointment with anyone.
“If I was appointed by the Chief Justice and the Department of Justice to do work then it is not for me to talk; it is for them to talk about it,” he said.
The Office of the Chief Justice did not respond to questions on the clarity of Justice Yacoob’s role or if there was a response to Casac’s queries.
The Mercury