Ngcobo is chief justice ... but for how long?

Will Judge Sandile Ngcobo be chief justice for just two years before giving way, perhaps to controversial Western Cape Judge President John Hlophe? Or could he keep the job for half a decade?

Speculation was rife after Ngcobo’s nomination on Thursday that his term would be brief, as he has already been a judge for 13 years and Constitutional Court judges ordinarily serve for a maximum of 15 years.

A senior judge pointed out to the Mail & Guardian, however, that according to legislation governing judges’ terms, it is only Ngcobo’s time on the Constitutional Court bench—nine years so far—that count towards the 15-year total.

‘He’d be absolutely justified in staying another six years,” the judge said.

The common wisdom is that Ngcobo has just two years to go and Zuma appeared to believe as much when he announced the nomination.

In response to a question on why he appointed someone who is close to retirement, Zuma said:

‘The fact of the matter is that he is in the Constitutional Court right now. He’s a judge there and we have appointed him to do the job. In two years’ time we’ll cross that bridge when we reach the river.”

The M&G reported a fortnight ago that Ngcobo was emerging as the favourite to replace Chief Justice Pius Langa, whose term ends at the end of October.

University of Cape Town constitutional expert Pierre de Vos said on Thursday it would not be ‘completely absurd to read something into it [Ngcobo’s appointment] and wonder whether he was not appointed to prepare somebody for chief justice in two years’ time”.
He, however, preferred to view Ngcobo’s appointment as a compromise.

‘The ANC wants to make the kind of move that will not upset the markets, that is not going to rock the boat too much, but that is in line with their particular vision of a transformed judiciary. Ngcobo is a safe choice, but Zuma left open the possibility for the appointment of judges less critical of the executive in the future.”

Viewed either way, the appointment is strategic.

Even if Ngcobo’s term ends in 2011, Zuma has the option to invite the 56-year-old Ngcobo to stay on until the age of 75.

Although Hlophe’s supporters are likely to be aggrieved by Thursday’s decision, it does give him breathing space to clear his name and convince Zuma that he should succeed Ngcobo.

The other candidate to succeed Langa was Deputy Chief Justice Dikgang Moseneke, who will stay on as Ngcobo’s deputy. Asked why he was overlooked, Zuma said Ngcobo had more experience as a judge. ‘He has serious credentials in terms of his qualifications.”

Zuma, who was addressing the National Press Club, vehemently denied that Moseneke’s comments at his birthday party in 2006—that he [Moseneke] is serving the people of South Africa and not the ANC—influenced his decision.

‘Dikgang Moseneke’s comments had no impact at all on what I have just done. Many people made remarks against me and I don’t do things on the basis of what people say about me. That issue [of the birthday party] never crossed my mind.”

De Vos said Ngcobo was a ‘very highly regarded person of integrity who has handed down very progressive judgments on HIV prescriptive medicines and the rights of accused persons”.

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