Why did Ngcobo pull out now?
Did Chief Justice Sandile Ngcobo know when he informed President Jacob Zuma that he would not seek to continue in office after August 14 that his Constitutional Court colleagues would rule within two days on whether the law relied on by Zuma to extend his term for five years was constitutional?
Ngcobo’s shock announcement on Wednesday that he was withdrawing his acceptance of the extension was followed on Thursday by an announcement from the court that judgment would be handed down at 10am on Friday.
Speculation in legal circles was rife immediately after the announcement of the imminent judgment that Ngcobo may have had some idea of its contents.
“His colleagues may have informed him as a courtesy, and he will have then acted to ensure that the office of the chief justice is not compromised,” said one legal expert who is sympathetic to Ngcobo on Wednesday.
“One of his friends on the Bench must have tipped him off what was coming,” said another senior legal figure who is privately critical of the planned extension of term.
Their speculation will be lent credence if the judgment, due just hours after the Mail & Guardian newspaper hit the streets, rules out both Zuma’s use of Section 8(a) of the Judges’ Remuneration and Conditions of Employment Act to keep Ngcobo on as chief justice and the fall-back amendments to the Act currently being debated in Parliament.
In the intensely political environment surrounding judicial succession, there was withering criticism of the process by both supporters of Ngcobo and his programme of court reforms and critics, most of whom would like to see Deputy Chief Justice Dikgang Moseneke get the top job.
But Ngcobo’s critics are likely to stress the fact that he originally acquiesced to the extension of his term and wrote to Zuma justifying it on the basis that the reforms still had a long way to go—a move his critics see as lobbying to stay on.
It is clear that the timeframes were impossibly tight. According to an affidavit filed in the Constitutional Court case by Justice Minister Jeff Radebe, he informed Zuma of the August expiry of Ngcobo’s term in March. In April, the president wrote to Ngcobo requesting him to continue in active service. Ngcobo’s letter accepting the extension was sent on June 2, and political party leaders informed by Zuma at Tuynhuis on June 3.
In the letter Ngcobo set out in some detail his work on developing an office of the chief justice, setting up a disciplinary tribunal for judges and establishing the Constitutional Court as the apex of South Africa’s legal system.
“I am in agreement with the president that a five-year term is appropriate and adequate to place the independence of the judiciary, judicial accountability and access to justice on a sound footing,” he wrote.
That left just 10 weeks for objections to work their way through ponderous processes in court, Parliament, and the Judicial Service Commission.
The announcement prompted a challenge to the Constitutional Court by civil society groups, including the Centre for Applied Legal Studies and the Centre for the Advancement of the South African Constitution.
That placed Ngcobo in the awkward position where his peers in the court he heads must decide on the constitutionality of his term’s extension, an awkwardness he appeared willing to tolerate—until Wednesday.
Ngcobo is well respected and many believe that an extension of his term of office was necessary and desirable.
In a bid to find a politically and constitutionally palatable solution, a hasty process began this week to extend Ngcobo’s term by an Act of Parliament.
Public hearings by the portfolio committee on justice and constitutional development on the Judges’ Remuneration and Conditions of Employment Amendment Bill were held on Tuesday.
But the justice department ought to have been aware that Ngcobo’s tenure as chief justice might be short-lived, both supporters and critics say.
When he was appointed to the post in 2009, he had already served in the Constitutional Court since 1999, meaning his term of 12 years allowed for by the Constitution, would be up within two years.
A dark-horse candidate for the role, Ngcobo was seen as more politically acceptable to the ANC, and Zuma in particular, than the front runner, Moseneke. He was also a broadly acceptable alternative to the controversial Judge John Hlophe, who was also seen as a contender.
Ngcobo told the president 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”.
It is unclear what will become of the parliamentary process, although presidential spokesperson Mac Maharaj suggested on Wednesday that it was now moot.
Submissions to the justice committee this week suggested that the Bill might not pass constitutional muster either as it singled out the chief justice for extension rather than covering all judges.
Much depends on the ruling of the Constitutional Court regarding whether Section 8(a) is constitutional and whether it is possible to legislate separate terms for different constitutional court judges, according to Richard Calland of the Democratic Governance and Rights Unit (DGRU) at the University of Cape Town.
He argued that Ngcobo might yet be able stay on but said this hinged on the completion of the parliamentary process by August 14.
“In turn, the judgment of the Constitutional Court might influence this because of what it does or does not say about ‘differential treatment’.
“Time is of the essence—the predicament is still with us but a crisis can still be averted,” he said.
But Tlali Tlali, the justice spokesperson, said there were no circumstances under which Ngcobo might stay on and he denied that the government had handled the matter in a manner that undermined the judiciary.
“We did not bring up this litigation,” he said. “The president acted in accordance with the existing laws.”
Just what legal advice the presidency and the justice department relied on in doing so remains unexplained and Ngcobo has yet to speak on the matter in his own behalf. The M&G‘s calls to his office were not returned.
The focus will now turn to who succeeds Ngcobo. It is possible, if all the processes move at unusual speed, that a new permanent appointment will be announced on August 15.
Alternatively, according to the Constitution, Moseneke will serve as acting chief justice while a more thorough process is carried out.
Many judges, lawyers and legal commentators said Zuma would be reluctant to appoint Moseneke permanently because of his role in Constitutional Court decisions affirming the progress of the corruption charges against him, and Moseneke’s birthday party comments that he served society rather than the ANC. Other names in circulation include Judge Sisi Khampepe, seen by many as a frontrunner, and her constitutional court colleague Mogoeng Mogoeng.
President of the Supreme Court of Appeal Lex Mpati and judge president of the North and South Gauteng High Courts Bernard Ngoepe are also mentioned. Constitutional Court Judge Edwin Cameron is touted by admirers of his jurisprudence but he is likely to be as politically unpalatable as Moseneke.
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.