The Constitutional Court said on Friday that President Jacob Zuma’s decision to extend outgoing Chief Justice Sandile Ngcobo’s term was unconstitutional.
The judgment was unanimous.
The court declared Section 8a of the Judges Remuneration and Conditions of Employment Act — in terms of which Zuma extended Ngcobo’s term — unconstitutional.
The court found that the section allowed the president to “usurp” the power of Parliament and held that Parliament alone had the power to extend a Constitutional Court judge’s term of office.
Zuma and the justice minister were ordered to pay the costs.
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 (Cals) 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.
Ngcobo’s integrity was not in question, but the Council for the Advancement of the SA Constitution, Freedom Under Law, the Justice Alliance of SA 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.
‘Vindicated’
Professor Ralene Keightley, Cals director, told the Mail & Guardian on Friday she felt “vindicated” by the decision and was extremely pleased with the unanimous verdict.
She said the president had been poorly advised.
Keightley said Zuma’s legal advisors should have known the Act “was unconstitutional and would be challenged”.
She said the advisors had known when Ngcobo was appointed that he only had 18 months still to serve.
ANC chief whip Mathole Motshekga denied that Zuma should “feel embarrassed about his decision” and that the president could not be blamed for the unconstitutional nature of 10-year-old law.
He said the “only regret the ruling party has is the loss of the chief justice”.
Zuma must now appoint a new chief justice by August 15th.
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.
