JAFTA J service for at least 3 months in a year until they reach the age of 75 years.200 The Minister proceeded to submit that “because the designated Judge performs a judicial function, it is not necessary to follow a further selection process to ensure that he or she is a fit and proper person to act as a designated Judge”. [189] The Minister’s argument is flawed. The Judges’ Remuneration and Conditions of Employment Act does not, even remotely, empower the Minister to designate a Judge for purposes of RICA. And since the role played by a designated Judge is so crucial to the justification of the limitation of privacy of communications, absent a lawful and valid designation of a Judge, must mean that the limitation is not justifiable. Nor can it be said that it is reasonable. Remedy [190] The failure to prove that the limitation authorised by Chapter 3 meets the standard laid down by section 36 of the Constitution means that the Chapter is not valid and a declaration to this effect must be made. The absence of a power to designate a Judge in RICA makes suspension of the declaration of invalidity inappropriate. This is because the Minister of Justice cannot continue to purport to be exercising a power which RICA in its defective form does not confer on him. 200 Section 7(1)(a)(i) provides that: “(1)(a) A Constitutional Court judge or judge who has been discharged from active service, except a Constitutional Court judge or judge who has been discharged in terms of section 3 (1) (b) or (c) or (2) (b), (c) or (d), who(i) has not attained the age of 75 years must, subject to paragraph (c), be available to perform service until he or she attains the age of 75 years, for a period or periods which, in the aggregate, amount to three months a year: Provided that such a Constitutional Court judge or judge may voluntarily perform more than three months' service a year, if his or her services are so requested.” 92