Chief Justice Sandile Ngcobo is due to retire in August. He should complete a stellar legal career at the pinnacle of the South African legal profession. He will have served as a judge for 15 years.
Ngcobo has written many important judgments holding the executive and legislature to account. He has also played a critical role in securing judicial independence in the new Superior Courts Bill. He can step down in August with pride.
But there is growing speculation in the media that government may try to extend the chief justice’s term of office. Justice department spokesman Tlali Tlali has said that it is premature to discuss any possible extension, but he has not ruled it out. This week Tlali pointed to the fact that such an extension is permitted by the existing Judges’ Remuneration and Conditions of Employment Act 47 of 2001 and that no new legislation would be required.
Tlali is correct that the Act was amended in 2001 to permit an extension of the chief justice’s term. Section 8 of the Act now provides that, after the term of office of the chief justice has expired the president may request him or her to continue to serve as chief justice “for a period determined by the president”, as long as it does not extend beyond the judge’s 75th birthday.
This provision has not yet been used and it is not clear what motivated its enactment in 2001. Whatever the motivation, the provision is a grave violation of the principle of judicial independence and therefore almost certainly unconstitutional and invalid. Under our Constitution, the terms of office of South African judges are non-renewable, including the terms of office of the judges of the Constitutional Court. The Constitution provides that Constitutional Court judges are appointed for a non-renewable term of 12 years, or until they turn 70, unless they require additional time to complete 15 years of active service as a judge. Their terms of office cannot be renewed.
The non-renewability of the terms of office of our judges is a critical component of their independence. It ensures that they have no incentive to stay in the good books of members of the executive. Even the most fair-minded and scrupulous judges would find it difficult to put out of mind how their judgments will be perceived by those who decide whether they will be reappointed.
‘Perception of political interference’
It is especially important that this kind of incentive does not affect the Constitutional Court. It is frequently called upon to adjudicate politically controversial cases involving members of the executive and Parliament. The danger of political interference or the perception of political interference, in the work of this court is severe. For this reason, the provision in the Act referred to by Tlali breaches the constitutional principle of judicial independence. It allows the head of the executive to decide, on a whim, whether to dispense a significant benefit to the head of the judiciary.
The very possibility of the chief justice receiving such a benefit from a frequent litigant before him is inconsistent with judicial independence. This is particularly the case given that the Constitutional Court (including Chief Justice Ngcobo) has repeatedly held that both actual independence and a reasonable perception of independence are required for compliance with the Constitution. This is because the justice system cannot operate effectively if it cannot command respect and confidence. The provision undoubtedly creates a reasonable perception of a lack of judicial independence.
Ironically, this principle was highlighted by the majority of the judges of the Constitutional Court in the recent Glenister judgment, in which the court struck down the legislation that replaced the Directorate of Special Operations (the Scorpions) with the Directorate for Priority Crime Investigation (the Hawks). One of the factors that made the Hawks susceptible to political interference, in the court’s view, was the conditions of appointment and security of tenure of their leaders.
Under the legislation, the National Commissioner of the South African Police Service (SAPS) had the power to discharge any member of the Hawks, including the head, from the SAPS. This lack of employment security, the court found, was made worse by the fact that the position of national commissioner is itself a renewable position.
The majority pointed out that “[a] renewable term of office, in contradistinction to a non-renewable term, heightens the risk that the office-holder may be vulnerable to political and other pressures”. The point applies with even greater force to the position of chief justice who, as the head of the highest court and the head of the judiciary as a whole, must be scrupulously independent and impartial.
To compound the unconstitutionality of the Act, it does not require the president to consult anyone before renewing the term of office of the chief justice. The decision is his alone to make.
This stands in stark contrast with the system of checks and balances created by the Constitution in respect of the initial appointment of the chief justice. Section 174(3) of the Constitution requires that the president consult the Judicial Service Commission and the leaders of parties represented in the National Assembly before appointing the chief justice. No such consultation is required by the provision permitting the renewal of the chief justice’s term. Yet such a renewal is as significant as the appointment of a new chief justice — in fact, in light of the considerations discussed above, there is even greater reason for such checks and balances when it comes to reappointing a sitting judge.
Given that the Act is probably unconstitutional and invalid, any renewal in terms of its provisions would likewise be unconstitutional and invalid. Chief Justice Ngcobo has thus far been a vigorous defender of judicial independence. For him now to accept an extension under this provision would be inconsistent with all that he has done and stands for. The president should not offer the extension at all but, if he does so, the chief justice must refuse to accept it.