Two weeks ago, Zapiro commanded our attention with a cartoon suggesting a second bad government move — from attacking the justice system to gutting the media.
This cartoon graphically reminded South Africans of the manner in which the government has sought to reduce the independence of the prosecuting service, with the firing of Vusi Pikoli as head of the National Prosecuting Authority, the destruction of the Scorpions, the attacks on the judiciary, the pressure put on the public protector and, most recently, the proposed legislative programme to restrict the media’s ability to hold the government to account, particularly for its stewardship of the public purse.
The one omission from the cartoon was that the attack on the justice system has not been completed. The extension of the term of Chief Justice Sandile Ngcobo for a further five years may, on the face of it, not appear to constitute another attack on the judicial institution. No one with the faintest acquaintance with the present operation of the courts needs that fervent praise singer Richard Calland (“It is in SA’s interest that Ngcobo stays”, June 17) to inform South Africa that Ngcobo has been an excellent chief justice.
The point is that the present dispute is about neither the quality nor the contribution of the present chief justice. It concerns an important principle, the subject of contest for many years and certainly throughout the apartheid decades: that judges should be appointed with a minimum of political interference and under a system that promotes the openness and transparency of appointments. For that reason, the Judicial Service Commission (JSC) was created.
Even in the case of the chief justice, although the Constitution empowers the president to make the appointment, the president is required to consult the JSC and the leaders of political parties in the National Assembly before making it. In the present case, this means that the president should have taken account of the views of the JSC.
Previously, the JSC publicly interviewed chief justices Pius Langa and Ngcobo (when he was initially appointed), which was then followed by a JSC recommendation. Similarly, the feedback of political leaders is required. Although President Jacob Zuma did not initially comply with this when he appointed the present chief justice, he finally followed the Constitution and consulted the other leaders.
As important as it is to state the obvious, that the brouhaha is not about the quality of Ngcobo, it is equally important to address the president’s omission of the Deputy Chief Justice Dikgang Moseneke. Columnists, including the Serjeant at the Bar, have detailed the commanding qualities of Moseneke, whom the president appears determined to overlook.
The president is entitled to appoint any qualified person to be the new chief justice and thus head of the Constitutional Court, but the president must follow the Constitution, which affords South Africans an opportunity to express their opinions in public, especially during the JSC process. The objection to the extension of Ngcobo’s term of office is not about trying to “hijack the court”, as has been suggested.
On the contrary, the current subversion of the appointment process lends itself to this kind of inference. That brings us to the constitutionality of the process employed in the extension of Ngcobo’s term. The argument in favour of those who contend that the extension is unconstitutional is compelling. Any scheme allowing further extensions of one judge’s tenure, particularly that of the chief justice, must compromise the perception of independence.
As an illustration, Ngcobo is 58. He can now sit until he is 63. Given that the legislation permits extensions until the age of 75, the president could then make a further 12 annual renewals — hardly a system that accords with the constitutional guarantee of judicial independence encapsulated in the very idea that Constitutional Court judges would be appointed for a single non-renewable term.
A court challenge has now been launched against the appointment. Zuma defends the law on the basis that it has been on the statute books for almost 10 years without any public complaint. Unfortunately for him, prescription as a legal defence does not apply here. He could change tack and have a law introduced to extend the term of all Constitutional Court judges to 15 years.
At present, there is a strange system under which those who are not sitting judges but are appointed to the Constitutional Court serve for a non-renewable term of 15 years, whereas sitting judges effectively serve for 12 years. If the law is changed to ensure one 15-year term for all judges, it would pass constitutional muster and allow Ngcobo three more years in office.
But to persist with the present course means that, come August, Ngcobo runs the risk that any decision he makes or judgment in which he participates could be declared invalid if the challenge to the extension of his term is successful. For this reason alone, if not for any of the other compelling ones, the government should think again.