Despite Chief Justice Ngcobo's decision to step down, the Constitutional Court will still rule on whether an extension of his term was constitutional.
The Constitutional Court will on Friday hand down judgment on whether it was constitutional or not for President Jacob Zuma to extend now-outgoing Chief Justice Sandile Ngcobo’s term of office.
The Cabinet announced on Wednesday that Ngcobo decided to withdraw his agreement to stay on for another five years, leaving the position vacant from August 15 if a replacement was not found by then.
Earlier in July, the court, without Ngcobo at the helm, heard a mass application against the way Zuma had offered Ngcobo an extended term.
Ngcobo’s integrity was not in question, but the Council for the Advancement of the South African Constitution, Freedom Under Law, the Justice Alliance of South Africa and the Centre for Applied Legal Studies at the University of the Witwatersrand said that according to the Constitution, Zuma needed to first consult with the Judicial Service Commission (JSC) and political parties before granting an extension.
Zuma did it the other way around—he granted the extension and then informed political parties and the JSC.
They further argued that the section of the Judges’ Remuneration and Conditions of Employment Act that allowed Zuma to extend Ngcobo’s term was unconstitutional because, according to the Constitution, a Constitutional Court judge’s term of office could only be extended by an act of Parliament.
The parties believe that there is not sufficient protection against abuse in Parliament extending this power to a president.
At the hearing of the Constitutional Court on July 18, Ngcobo was not present, nor did he file papers, saying rather that he would abide by whatever the court decided.
Ngcobo’s surprise withdrawal from the extension was hailed by many observers with the SA Council of Churches saying it showed he was a “man of integrity”.
Legislative push called off
As a consequence of Ngcobo’s decision, Parliament would also suspend its special sitting of the National Assembly scheduled for next Tuesday.
It would have approved amendments to a section in the Judges Renumeration Act dealing with terms of office of the chief justice.
ANC Chief Whip Mathole Motshekga’s office said in a statement on Thursday it accepted with regret Ngcobo’s decision on Wednesday to withdraw his acceptance of President Jacob Zuma’s extension of his term of office.
“We appreciate his selfless decision which was made in the interest of the integrity of the office of the chief justice and the judiciary,” the statement said.
The country owed Ngcobo a great deal of gratitude for the remarkable contribution he had made to South Africa’s justice system, Motshekga’s office said, particularly the landmark transformation programmes he initiated to entrench the independence of the judiciary.
“It is, in our view, questionable whether the decision by the parties responsible to mount a [Constitutional Court] challenge was taken in good faith ... No similar legal challenges were taken when the same process was followed previously regarding the extension of the terms of office for former justices Arthur Chaskalson and Pius Langa.
“We wish to reaffirm President Jacob Zuma’s correctness in his decision to extend Justice Ngcobo’s term of office, as provided for by Section 8(a) of the Judges’ Remuneration and Conditions of Employment Act.”
“The Act, which was passed by Parliament and had never been declared unconstitutional by any court, outlined the process for the “execution of section 176 of the Constitution”.
As a consequence of Ngcobo’s decision, Parliament would suspend its special sitting of the National Assembly scheduled for next week Tuesday. The sitting would have approved amendments to the section in the act dealing with terms of office of the Chief Justice.—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.