Between 2005 and 2009 South Africa went through what amounted to a constitutional crisis.
Between 2005 and 2009 South Africa went through what amounted to a constitutional crisis. The would-be president of the ANC and the country, Jacob Zuma, was fighting allegations of corruption in the courts and political pressure on both the judiciary and the prosecuting services was intense.
The Constitutional Court faced down a very public campaign of intimidation by supporters of Zuma and batted away the quieter overtures of Judge John Hlophe.
Meanwhile, the deputy chief justice, Dikgang Moseneke, almost certainly lost his chance to succeed Pius Langa in the top job over his stance on the various cases involving Zuma.
The court survived this assault with its independence intact, but it was a traumatic experience for the justice system and for South Africans who saw the rule of law and separation of powers as crucial guarantors of freedom.
The National Prosecuting Authority was less well insulated from political influence and its institutional independence has eroded steadily since Vusi Pikoli was sacked as national director by Thabo Mbeki because of his refusal to protect Jackie Selebi from investigation. It is against this backdrop that the challenge to Zuma’s five-year extension of Chief Justice Sandile Ngcobo’s term must be seen.
The University of the Witwatersrand’s Centre for Applied Legal Studies argues that the clause of the Judges Remuneration and Conditions of Employment Act, in terms of which the president has asked Ngcobo to stay on, is unconstitutional. It is certainly at odds with other relevant legislation, which requires the assent of Parliament for any such extension, as well as the broad constitutional scheme, which makes it clear that a judge cannot be seen to serve at the pleasure of the president.
The centre is not alone in its anxiety about the process. Indeed, as rumours of Zuma’s plans began to grow, the deputy judge president in the South Gauteng High Court, Phineas Mojapelo, took the highly unusual step of writing a newspaper article warning against any extension of Ngcobo’s term without thorough consultation.
We share those concerns. Ngcobo’s style as chief justice is in marked contrast to Langa’s and his judicial philosophy is easily distinguished from Moseneke’s, but there is no doubting his excellence as a jurist. Certainly, at 58 he still has a good deal to offer the Constitutional Court—as did judges Kate O’Regan and Yvonne Mokgoro, who both hit their term limits while still in their 50s and had to step down.
This, then, is not a debate about the person of Ngcobo, his qualifications, character or jurisprudence. They are unquestioned. It is a debate about the president finding a legal wrinkle to arrogate to himself powers that are not his and, in the process, shape the balance of the highest court in the land.
Zuma has now effectively provoked a new constitutional crisis. The courts will have to hear the Wits centre’s application and it must eventually make its way to Constitution Hill, where Ngcobo will have to recuse himself, while his colleagues wrestle with the challenge of separating their judicial duty from their relationship with him and his high office.
This is not a position in which the president should put the judicial system or the people of South Africa. We don’t trust his bona fides—and we shouldn’t have to.
The more things change
Reflecting on his team’s march to the final four of last year’s World Cup in South Africa and whether it could have positive effects back home in Uruguay, coach Oscar “El Maestro” Tabarez said: “We believe that, but not to the point where we believe that the world has changed because we won a few games.”
It is almost a year to the day since South Africa forgot itself to become, paradoxically, more itself: a country of cosmopolitanism, laughter, noise, warmth and humanity. A country filled with pride and heroic deeds—from events on the football pitch to the manner in which we welcomed the world.
But it was also a tournament of bombast and subterfuge. Hosting the World Cup has, so far, yet to become South Africa’s silver economic bullet. The government still mentions the intangibles when it talks about its positive effects: a reduction in Afro-pessimism, a higher international profile and, of course, Rainbow Nationalism. This to go with the R33.6-billion infrastructure investment (piling up to almost R100-billion government World Cup spend if parastatal projects, purchase of tickets and host city and province expenditures are added) vaunted as a much-needed job creator.
According to the government, the more than R15.5-billion spent on buildings stadiums created 66 000 construction jobs and R7-billion in wages. Yet only 30% (R2.2-billion) of this went to low-income households, suggesting that these economic benefits merely replicated the national pattern of unequal wealth distribution. That is, the elite gained more than the poor. And South Africa still lost 232 000 jobs in the first half of 2010.
Then consider Fifa’s recent announcement of (tax-free) revenue totalling $4.2-billion from the World Cup, a 59% increase on what it made from the 2006 tournament in Germany. World football’s governing body is sitting on a record surplus of $1.28-billion thanks, in no small part, to this country.
A year on, we are reminded of El Maestro’s words: we believe the World Cup has left an indelibly positive mark on South Africa, but we do not believe that our world has changed because we hosted a few football games.