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The legal challenge to the extension of Chief Justice Sandile Ngcobo’s term of office is as unnecessary as it is unfair. This is not to say that the challenge should not proceed: the legal provision at stake is rotten and must be removed entirely, or submitted to surgery.
But those who are so eager to take the matter to court in the name of judicial independence may have lost sight of the big picture.
To repeat briefly the legal provisions: ordinarily, judges must leave the Bench after 12 years in the Constitutional Court. Section 176(1) of the Constitution states: “A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.”
Accordingly, the Judges Remuneration and Conditions of Employment Act 2001 was passed. Section 8(a) of the Act gives the president the power to extend the term of office of a chief justice when he reaches the end of his normal tenure as a judge (and may do so until the judge reaches the age of 75).
It is not a blank-cheque discretion—it applies only when a relatively young chief justice, as in the case of Ngcobo, who is 58, would otherwise have to leave office—but it does appear to fly in the face of the system of checks and balances that exists in relation to judicial appointments in general.
When (first) appointing the chief justice, the president must consult the Judicial Service Commission (JSC) and the leaders of all political parties represented in Parliament, as per section 174(3) of the Constitution. But when extending that appointment in the circumstances of section 8(a), he has no such duty.
Because this could be for a long period—theoretically 17 years in the case of Ngcobo - it seems curious, at the very least. In the wrong hands it could obviously be an instrument for the substantial diminution of judicial independence.
Hence the understandable concern about its appropriateness in a constitutional democracy in which the Constitution is supposed to be supreme and its ultimate guardianship lies with the Constitutional Court, which in turn, is headed by the chief justice.
However, the fixation on section 8(a) appears to ignore the possibility that it may have a sound constitutional origin. After all, the section 174(3) “check and balance” is pretty slender: not “in consultation”, which creates a virtual veto power, but “after consultation”; in effect, the president merely has to inform the JSC and political party leaders of his decision.
So, all section 8(a) does is to allow the president to extend the term of office of the (relatively youthful) chief justice, whose appointment he already has much discretion to make, especially because he may helicopter in pretty much anyone. The chief justice and his deputy do not have to be members of the Constitutional Court or even current judges, thus they do not, in any case, have to go through the JSC appointment process.
If the real concern is that the executive may use its discretion to appoint a weak or compliant or politically malleable chief justice, the real problem may well not be section 8 of the Act but section 174 of the Constitution, in which case the constitutional challenge may fail.
Ngcobo is none of these things. He has a fine intellect and has made a distinctive contribution to the progressive jurisprudence of the court since his appointment to it in 1999. He is also likely to be South Africa’s greatest reforming chief justice—if given the chance to continue in office.
And this is the big picture. Ngcobo is in the middle of a detailed and very delicate process of institution-building. If his vision reaches fruition—and such is its ambition in so far as the institutionalisation of the independence of the judiciary is concerned that we will forever be in his debt if he manages to pull it off—it will be an extraordinary victory for the rule of law.
A key and probably decisive element of this process is his ability to forge a constructive relationship with the executive and the justice minister, in particular, which is such that the political risks (primarily of upsetting the Polokwane popularists) are far outweighed by the historic task of building a resilient judicial branch of government.
This is not only about creating a strong office of the chief justice, but also about creating an autonomous or semi-autonomous court administration.
Last week, in Trondheim, Norway, Ngcobo heard how the 2002 reform that created the Norwegian Courts’ Administration was generally popular with both the judges and the public. It has specialist capacity; it is focused only on the sound administration of the courts, whereas an executive-based system has many competing responsibilities; and it is closer to the courts and therefore more responsive to their needs in terms of case management and the efficient deployment of resources.
South Africa’s own journey towards a stronger, more effective courts system is delicately poised. The window for pursuing the chief justice’s vision on the basis of a sensible accord with the government may be small, because the ANC’s 2012 national elective conference looms on the horizon, and having to appoint a new chief justice now could do irredeemable harm to this project. It is highly unlikely that a new chief justice would have the same clear vision or the courage and conviction to close the deal.
Of course, Ngcobo may not be everyone’s cup of tea; great visionaries or leaders rarely are. Those litigating will stress that it is not about the man but the principle, but Ngcobo, understandably, will take it as an attack on him and even his vision.
And when it gets to the Constitutional Court the other nine judges—Ngcobo and his deputy having recused themselves—will have to rule on the fate of their chief justice. That is unfair to them and Ngcobo and is thoroughly undesirable.
Like so many well-intended things in life, the legal challenge could do more harm than good. The statute under attack has been there for 10 years. Why wait until now to challenge it? This could have been resolved years ago—at the very least a statutory amendment could have been put before Parliament two years ago, when Ngcobo was appointed and the problem was already obvious. The timing is unfortunate in the extreme.
Is there any way out of this mess? Only by seeking the following remedy: a declaration that the provision is constitutionally problematic and an order requiring Parliament to fix it within three years while, in the meantime, confirming the validity of the appointment of the chief justice for those three years.