On these pages last week Serjeant at the Bar offered a sound rendition of the argument against extending the term of office of Chief Justice Sandile Ngcobo.
Sound, but merely sound. Preoccupied by principle, the Serjeant appears to have lost his sense of creativity and, thereby, his sense of the art of the possible.
This is not, in fact, only about Ngcobo, admirable chief justice though he is. It is about the circumstances more than the man. In recent times I have not been alone in speaking of the “second transition”. As with the first, in the early 1990s, the second is a process not an event, with many bear traps in the path ahead.
The judicial-governance landscape is especially formidable at the moment, with at least five other defining features in addition to the knotty question of the extension of the chief justice’s tenure.
First, the recent Supreme Court of Appeal judgment in the Hlophe-Judicial Service Commission (JSC) matter has thrown a curve ball back at the JSC just at the time when it was stabilising after a fraught few years.
Faced with two versions of the facts — that of two members of the Constitutional Court, on the one hand, and Judge President John Hlophe’s on the other — both of which could not be true, the JSC chose to avoid the issue altogether.
Now, however, it is compelled to revisit the matter. How will they handle it this time? Will they fudge it again?
Lack of consensus
The Hlophe case has, more generally, exposed the lack of consensus in the profession about judicial ethics and the standards of conduct that we have the right to expect of the bench.
As if the JSC did not have enough to worry about with its “day job” — judicial selection. This week and next, for example, the JSC is meeting in Cape Town to interview about 30 candidates for places on the High Court and the Supreme Court of Appeal.
Until recently, the interviewing was often inconsistent, lurching about without any apparent clear set of criteria to guide the process. Happily, the JSC now appears to be flourishing under the leadership of Chief Justice Ngbobo, with a calm yet resolute hand on its tiller and a determination to strengthen the JSC’s internal capacity and governance. This is the second important dimension to the judicial-governance landscape.
The third concerns the inevitably vexed subject of separation of powers. The recent Constitutional Court decision in the Glenister (Scorpions-Hawks) case can only have added to the residual tension at a time when the chief justice is seeking to build trust between the three branches of government.
On Monday, at the University of Cape Town’s second annual Constitution Week, Ngcobo set out his stall in the first of a series of engagements with legal and political stakeholders that, over the coming months, will seek to persuade the political establishment in particular that when the judiciary performs its constitutional function it is “merely” doing that and so should not be distrusted.
“Constitutional dialogue” among the judiciary, the executive and the legislature is a part of South Africa’s culture and the genealogy of its constitutional settlement, as well as of the text of the Constitution itself.
Constitutional muster
The Glenister case is, the chief justice would no doubt argue, a prime example of this: the court has decided that the Act that created the Hawks does not pass constitutional muster because the Constitution envisages a higher degree of independence. Therefore, they have thrown the ball back to Parliament to fix it; this is “constitutional dialogue”.
Trust is an essential ingredient in this process. And it will need to be present as the latest version of the Superior Courts bill makes its way through Parliament, a crucial fourth issue. In the new draft, important deals seem to have been struck in relation to the separation of functions in terms of where and how the courts are administered.
Yet, the debate about whether the Constitutional Court should be the apex court, hearing appeals in all matters not just those concerning constitutional law, will rightly be keenly contested. Such a change would be a huge mistake: it would undermine the Supreme Court of Appeal, currently the court of last resort in all non-constitutional matters, rendering it largely irrelevant; and, no longer a specialist court, it would severely dilute the ability of the Constitutional Court to continue to develop a unique brand of South African constitutional jurisprudence.
Moreover, the Constitutional Court is not fit for an “apex” purpose: its members have been appointed on the basis of constitutional expertise and aptitude, not all-round legal ability.
Fifth, the chief justice is engaged in the task of establishing an Office of the Chief Justice (OCJ). This is potentially one of the most significant pieces of institutional development during this phase of South Africa’s democratic consolidation. By virtue of a four-line presidential proclamation last September, the OCJ was established as a department of state. While its precise future modality is still to be determined, one hopes that from this small acorn will grow a sturdy oak.
For the chief justice argues that in order to be a reliable partner in constitutional dialogue the judiciary must have public confidence and it must, therefore, be independent. If it is not independent — if it is beholden to any or both of the other branches of government — then the integrity of the dialogue will be fatally undermined.
To be independent, the judiciary needs capacity to govern its own affairs, to set norms and standards, to encourage jurisprudential consistency and to improve court procedures so that they enhance access to justice.
To navigate the complex topography of the second transition requires skilful stewardship and a certain continuity of leadership. These are extraordinary and therefore exceptional times. And they require — for a defined and limited period (say, two years) — the extraordinary leadership that the current chief justice can provide. That is why it would be right to extend his term and why Serjeant at the Bar was wrong last week.