The section of the Act on which Zuma relied on to extend Chief Justice Sandile Ngcobo's term of office, was "almost certainly unconstitutional".
The section of the Judges’ Remuneration and Conditions of Employment Act, on which President Jacob Zuma relied to extend Chief Justice Sandile Ngcobo’s term of office, was “almost certainly unconstitutional”, constitutional expert Pierre de Vos said on Thursday.
De Vos said on his blog site Constitutionally Speaking that Ngcobo had “unwisely” accepted Zuma’s offer to extend his term of office.
Zuma recently extended Ngcobo’s term for five years after being told it would expire at midnight on August 14.
De Vos said Zuma had merely informed political parties and the Judicial Service Commission (JSC) about this decision.
This was followed by a Constitutional Court challenge brought by the Justice Alliance of SA (Jasa), Freedom Under Law (FUL), the Centre for Applied Legal Studies (Cals), and Council for the Advancement of the SA Constitution (Casac).
Despite an urgent remedying Bill having been tabled in Parliament, the case was heard on July 18 but the court had yet to pronounce on the matter.
The applicants contended that Section 8(a) of the Act was inconsistent with the Constitution because Section 176(1) of the Constitution provided for an Act of Parliament—and only an Act of Parliament—to extend the terms of office of any Constitutional Court judge.
The second reason was that the delegation of power by Parliament to the president was too wide and provided no guidelines for the exercise of the power.
It was also submitted that Section 176(1) precluded the extension of the term of office of a particular Constitutional Court judge, including the chief justice, as distinct from extending the terms of all Constitutional Court judges.
The fourth argument was that, even if the president had the power to extend the term of office of the chief justice, the Constitution placed an obligation on that office to consult with the JSC and political parties before making any extension.
De Vos said the inevitable controversy that resulted threatened the integrity of both the office of the chief justice and the incumbent.
Playing party politics
“The government made things worse by refusing to admit that the section on which the president had relied might be constitutionally problematic, and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of Section 8(a) were motivated by a hatred for the chief justice.”
With the issue having been politicised and personalised, Ngcobo was placed in an almost impossible situation, De Vos said.
On Wednesday, Justice and Constitutional Development Minister Jeff Radebe announced that Ngcobo had withdrawn his decision to accept the extension of his term of office, and Zuma had accepted this.
Ngcobo had taken the decision to protect the integrity of the office of the chief justice and the esteem of the judiciary.
“Chief Justice Ngcobo said he found it undesirable for a chief justice to be a party in litigation involving the question of whether or not he or she should continue to hold office, as this detracts from the integrity of the office of the chief justice and the esteem with which it is held,” Radebe said.
De Vos said government’s original intransigent stance had threatened to destroy the integrity of a judge who had served South Africa with distinction.
“By then—belatedly—proposing an amendment to the Act that would only extend the term of office of the chief justice and the president of the Supreme Court of Appeal (SCA) ... Radebe further complicated matters as it was far from clear that this new proposal would pass constitutional muster.”
Vos questioned why the justice minister and the president had not thought—a year or two ago—whether Section 8(a) was constitutional, and what other legal mechanism could be used to extend the term of the chief justice.
“How can one govern a country when one does things at the last minute in the hope that one can bluster one’s way through by denigrating those who insist on upholding the Constitution?
“By resigning, Chief Justice Ngcobo is displaying the kind of integrity and respect for his office and for that of the Constitutional Court that those of us who have always admired him, came to expect from him.”
Vos said the big question now was who Zuma would appoint to the position.
Also on Thursday, Casac said Ngcobo had served the Constitutional Court, the judiciary, and the people of South Africa with great skill, ability, and dignity.
“We are aware that this would have been a very difficult decision for the chief justice to take.”
It was unfortunate that government’s failure to deal with the proposed extension in a constitutionally compliant manner had created the conditions for Ngcobo to take this decision.
In the legal challenge, Casac had made it clear it was not taking issue with the person of the chief justice.
It was the use of Section 8(a) that was the focus of the challenge.
The court’s decision would provide clarity on the process to be followed in any extension of a term of office of a chief justice in future.
“We trust that the president will now follow the provisions of the Constitution in properly consulting with the JSC and the political parties represented in the National Assembly before appointing a new chief justice,” Casac said.—Sapa
President Jacob Zuma has nominated Constitutional Court judge Mogoeng Mogoeng as the new Chief Justice. For more news on the controversy surrounding the appointment click here.