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Perhaps the most that can be said about the furore surrounding the proposed extension of the term of office of Chief Justice Sandile Ngcobo is that even when the government wishes to implement a policy it is incapable of doing so.
Consider the facts. Manifestly, the government wanted the chief justice to remain in office.
Whatever the merits of the arguments in favour of other candidates such as Deputy Chief Justice Dikgang Moseneke, this decision had merit. Ngcobo proved to be an energetic, hardworking and visionary leader who, in addition, is one of the very best judges on the court.
Then, some nongovernmental organisations wrote to Justice Minister Jeff Radebe, as far back as early May informing him that they considered the process by which the government proposed to extend the chief justice’s term to be constitutionally flawed. They warned the minister that if he proceeded with the appointment in this way they would oppose the legislation in court.
The minister still had three-and-a-half months before Ngcobo was to retire. There was more than enough time to introduce legislation that would be secure from challenge. Many commentators, including contributors to this column, suggested that all Constitutional Court judges be given a non-renewable term of 15 years. At present, sitting judges appointed to the Constitutional Court enjoy a term of 12 years. But those such as Judge Zac Yacoob, who was not a judge before being appointed, serve for 15. Hence, an amending law could have ensured that all judges serve the same non-renewable term and, as a consequence, Ngcobo would have enjoyed three more years of office.
But the minister did nothing until, finally, in July, the Cabinet approved a Bill to ensure that a chief justice could serve a term of at least seven years. The minister told the Access to Justice Conference in July that the Bill was not strictly required, for the president had acted constitutionally and, furthermore, that the Bill would ensure that litigation was unnecessary.
It must be presumed that he sought and obtained legal advice on the prospect of the NGO challenge. If he did take advice, from whom did he obtain it? At the very best, the advice proved to be seriously suspect. At worst, it seems to be similar to the quality of advice given to the government in respect of the Protection of Information (or “Secrecy”) Bill.
Before examining the Constitutional Court’s unanimous decision on the matter, it is instructive to note that almost no one in the legal community was prepared to go on record and claim that the mechanism the president used was constitutional. That’s hardly surprising when the judgment is analysed. It noted that Section 176(1) of the Constitution, which provides for a 12-year, non-renewable term for Constitutional Court judges, contains an exception, namely that an Act of Parliament can extend a judge’s term.
But Section8(a) of the Judges’ Remuneration and Conditions of Employment Act empowers the president to extend the chief justice’s term of office for a period determined by him, but with the caveat that the chief justice must retire by age 75 .
The court made the obvious finding: in the case of an appointment such as that of the chief justice, Parliament cannot delegate the power of appointment it enjoys under the Constitution to an individual, even if he or she is the president.
Had that been the only finding, the result may not have been fatal to the extension of the chief justice’s term. But seven of the 10 justices found that Section 176(1) permitted no differentiation in the term of office between the justices of the court. Although this is, arguably, a less obvious finding than that concerning the delegated power to the president, it was buttressed with recourse to the principle that a non-renewable term of office is an important safeguard against the perception, at the very least, that a judge whose term is extended has been unduly favoured.
Given the court’s steadfast commitment to judicial independence, it interpreted Section 176(1) in a manner designed to minimise the risk of any such erosion of judicial legitimacy.
This finding ended any chance that the minister’s proposed amendments would rescue the presidential recommendation: the Bill sought only to ensure a minimum term for the chief justice and president of the Supreme Court of Appeal.
The most positive consequence of this debacle was the assertion by a unanimous Constitutional Court of the importance of judicial independence and the court’s role as the ultimate guardian of this principle.
By contrast, the balance of the cast did not cover themselves with glory. A number of commentators have argued that the chief justice was compromised by departmental bungling. His accepting the nomination when it was clear litigation was pending and based on a plausible case meant that his colleagues were compelled to judge a case they surely would have preferred not to.
Yet the real blame lies not with a chief justice, whose skill is now lost to the judicial institution, but with those who advised the justice minister and president. Their incompetence has doubtless meant that a Bill immune from any constitutionally plausible attack was not prepared well before the chief justice was required to retire.
In the light of this mess, and given criticism of the suitability for office of appointments such as National Prosecuting Authority head Menzi Simelane, is it too much to hope that the president will appoint someone appropriately qualified and widely seen as able to step into the large shoes left by Ngcobo?
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.