/ 24 July 2009

Concourt dark horse takes the lead

He has long been tipped as an outsider for the top judicial job in the country, but Sandile Ngcobo now seems a firm favourite as the race to replace Pius Langa as chief justice enters the home stretch.

Ever since the ANC launched a series of attacks on Deputy Chief Justice Dikgang Moseneke, who was previously seen as Langa’s likely successor, judges and legal commentators have privately suggested that Ngcobo is the most credible of the candidates who are politically palatable to President Jacob Zuma and the ANC.

Now the Mail & Guardian has established from sources at the Constitutional Court and from an independent source close to key discussions that Ngcobo has held a ”high-level” meeting with Justice Minister Jeff Radebe.

Ngcobo denied such a meeting, as did Radebe’s spokesperson, Tlali Tlali, who said such suggestions were ”inaccurate, misleading and factually skewed”. He added that the minister had met all Constitutional Court judges at the invitation of Langa.

But the M&G has been told by five people close to the succession-planning debate that Ngcobo is favoured by Radebe as a ”stop-gap” chief justice and head of an envisaged new-look judiciary with the Constitutional Court at its apex. The M&G understands from a range of well-placed sources that the ANC favours Ngcobo.

Ngcobo, who was appointed to the court in 1999, is scheduled to retire in 2011, which means he would be chief justice for only two years. But Zuma could invite Ngcobo, who is only 53, to stay on until the age of 75.

A group, the Alliance for Justice Hlophe, announced at a press conference last week that Western Cape Judge President John Hlophe was its preferred candidate to succeed Langa, who will retire in October. But other Hlophe backers now privately concede that they expect Ngcobo to take the job, at least for the next two years.

Radebe is said to see Ngcobo as the perfect candidate to temper the controversy surrounding Hlophe, who has been accused of attempting to influence the Constitutional Court in a case involving Zuma, among other ethical lapses.

Although not necessarily opposed to Ngcobo being appointed, a source close to Hlophe told the M&G that it would be an act of ”cowardice” to appoint him, given that he would be in the post for only two years. He said that Hlophe’s supporters would be vehemently opposed to any attempts to invite Ngcobo to stay longer than his discharge date in 2011 if he were to be appointed.

The source said Hlophe’s supporters would point out that this would be setting a bad precedent, especially after similar suggestions of extending Langa’s tenure were abandoned.

Bitter taste
An advocate at the Johannesburg Bar who has strong connections to the ANC told the M&G that Moseneke’s spat with the ANC after the Polokwane conference has left many in Luthuli House with a bitter taste.

He said the ANC was ”sensitive to being seen as anti-judiciary” or against the Constitution, which they see as their own. The party would therefore want a chief justice ”who will not be seen to be aligned to any camp”, especially in the ruling party.

”They would want a chief justice they would agree with on the important things and the separation of powers — not one who will fight with them about peripheral stuff,” said the advocate.

Many in the ANC and its alliance partners perceive Moseneke as being ”too close” to former president Thabo Mbeki.

Paul Ngobeni, a staunch Hlophe supporter and former University of Cape Town administrator, said ”he had absolute respect” for both Moseneke and Ngcobo, but still believed that only Hlophe could stand up to the transformation challenges facing the country.

A senior judge on the Western Cape Bench said the ”Langa court” was ”effectively an extension of the Chaskalson court and did not have an independent vision”.

”The question is which of [them — Moseneke and Ngcobo] will break with this tradition. The prospects are [that] neither will,” said the judge.

But he said that Moseneke ”has a better prospect of breaking with the eurocentricity of the court”.

Ngcobo, although erudite, is ”stodgy”, he said.