With an “imperial demeanour”, “excellent administrative skills” and an “incredibly intimidating” presence in court, exiting Chief Justice Sandile Ngcobo was, by most accounts, a departure from his “egalitarian” predecessors, Arthur Chaskalson and Pius Langa.
But many members of the legal fraternity said consideration of his legacy for SA jurisprudence made it too simplistic to reduce Ngcobo to an emperor without clothes because of a perceived executive bias and bumbling over President Jacob Zuma’s attempts to extend his tenure.
The University of Cape Town’s constitutional law expert, Pierre de Vos, said: “There was absolutely nothing in his jurisprudence that was not well argued and thoughtful. The pity here is that some people would now read his judgments in the light of the controversy about his re-appointment and would wrongly conclude that he was not a judge who sincerely grappled with very difficult and complex constitutional issues.”
A renowned silk, who spoke to the Mail & Guardian on condition of anonymity, described Ngcobo as a jurist with “quite conservative instincts”, whose minority judgments in favour of the government were “worrying” but “not enough to draw inferences of executive bias”.
Perhaps Ngcobo’s most controversial dissenting judgment was when Zuma, who was facing corruption charges in 2008, challenged the constitutionality of search-and-seizure warrants used by the Scorpions three years earlier to gather information from the offices of his lawyer, Mike Hulley. The entire Constitutional Court, with the exception of Ngcobo, found the warrants to be legal. The perception, which prevails until today, was that Ngcobo’s minority judgment was an attempt to curry favour with the future president — with an eye on the position of chief justice, which would be vacated by Langa a year later. A legal mind familiar with the case said Ngcobo was “defending the indefensible” and was “vaguely naive” in his minority judgment.
But even some of Ngcobo’s critics said his argument had strong legal foundations and was an extension of a “well-known interest, perhaps developed during his time in the United States [in the Eighties], in the rights of criminal defendants to counsel and issues of privilege”, a member of the legal fraternity said.
The early years
Ngcobo himself had first-hand knowledge of being denied legal recourse. After completing a BProc at the University of Zululand in 1975 (with distinctions in constitutional law, mercantile law and accounting), he was detained without trial for a year. In his 1999 interview for a place on the Constitutional Court Bench, Ngcobo said that experience has been a formative one in his legal upbringing.
He worked at the Legal Resources Centre in Durban in the early Eighties, where, according to office administrator Asha Moodley, he “dealt with cases involving evictions, forced removals and access to grants — things very relevant today — so he was pretty innovative back then,” she said.
Ngcobo completed his LLB at the then University of Natal. As a black person he had to apply for special permission from the minister of justice to study there. He attended the Harvard Law School as a Fullbright scholar in 1985 and as a Human Rights Fellow in 1986.
Ngcobo then served as a law clerk and research assistant for the respected A Leon Higginbottom Jnr, chief judge of the Third Circuit Court of Appeals, before practising as an advocate in Durban and in Philadelphia.
Ngcobo was appointed a judge in the Cape High Court in 1996 and then served as a judge in the labour court before his 1999 installation in the Constitutional Court.
From the advent of his ConÂstitutional Court career Ngcobo has, inadvertently, found himself cast as the less popular choice among candidates. In 1999, on the death of Judge John Didcott, many in the legal fraternity felt the vacancy should have been filled by current Constitutional Court Judge Edwin Cameron. The position went to Ngcobo. Again, in 2009, when it came to replacing Langa, consensus appeared to rally around the more progressive Deputy Chief Justice Dikgang Moseneke. The job went to Ngcobo.
Members of the legal fraternity can quickly point to several seminal judgments written by Ngcobo.
Stuart Wilson, of the Socio-Economic Rights Institute of South Africa, which has brought several social justice cases before the court, said the court’s 2005 “Doctors for life judgment”, written by Ngcobo, was his “greatest contribution to South Africa’s jurisprudence”. The judgment underscored the importance of public participation in policy development and law making as an indispensable part of constitutional democracy. It also found it necessary that the government facilitate that process.
De Vos said Ngcobo’s minority judgment in the Gareth Prince case would have judicially accommodated one of the most marginalised groups in South Africa. In 2002 Prince, a practising Rastafarian and candidate attorney, was refused admission to the Cape Bar because of previous convictions for marijuana use. He applied to the Constitutional Court to allow Rastas to use marijuana in accordance with their religion and thus allow him to practise law. The court, with a majority of one, found against Prince.
A father of three, Ngcobo also has a strong interest in customary law. In his Constitutional Court interview he said he felt that coming from KwaZulu-Natal and his “own knowledge of black culture in general” would stand him in good stead in cases involving “the tensions between customary law and the Constitution”.
Interestingly, the Black Lawyers Association, by arguing last week for a suspension of the Constitutional Court order that declared Section 8(a) of the Judges’ Remuneration and Conditions of Employment Act invalid and in defence of Ngcobo extending his term, was basing its objection on customary African jurisprudence.
As De Vos noted in his blog, Constitutionally Speaking, the association “contended that a mistake has been made in good faith by all concerned and should be ‘forgiven’. It argued that the term ‘tshwarelo‘, or ‘tshwarela‘, is applied in African jurisprudence, and is applied in ‘lekgotla‘ (African traditional courts), meaning ‘excusable’ or ‘excuse’ and translates to ‘erasing the wrong permanently’.”
Ngcobo was described by one silk as “a patriarch” and “kind of authoritarian”. “He is very fussy about propriety, especially around age and authority”, a departure from his predecessors who were “determinedly aloof of power”, according to one senior counsel.
There are stories of dinner-party guests being chauffeured to Ngcobo’s home in a blaze of blue lights and a predilection for “imperial behaviour”. Regardless, Ngcobo remained a jurist with the green Constitutional Court robes firmly on during his tenure.
Five candidates in the running
The process to select a new chief justice by August 15 is under way with a special meeting of the Judicial Service Commission (JSC) next week to discuss the matter.
President Jacob Zuma must select the candidate in terms of Section 174(3) of the Constitution, which requires him to consult both the JSC and the leaders of political parties in the National Assembly. The president can nominate any person who meets the basic requirements for appointment to the position of a judge.
The Mail & Guardian has learnt that the JSC commissioned research into five senior judges, suggesting they may be in the running for possible selection. They are Constitutional Court Judge Sisi Khampepe, president of the North and South Gauteng High Courts Judge Bernard Ngoepe, president of the Supreme Court of Appeal Judge Lex Mpati, president of the labour and labour appeals courts Judge Dunstan Mlambo, and Supreme Court of Appeal Judge Kenneth Mthiyane.
But JSC spokesperson CP Fourie said he was unaware of any work commissioned by the JSC. If there was such work being done it had not been initiated by the commission, he said. — Lynley Donnelly
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.
