A High Court judge is opposed to the Bill to resolve the impasse over the extension of the term of office of Chief Justice Sandile Ngcobo — he says it “undermines the entire system of law”.
In a response to a call by Parliament’s portfolio committee on justice and constitutional development for public comment, Judge Nigel Willis has objected to the Judges’ Remuneration and Conditions of Employment Amendment Bill, arguing that it amounts to “shifting the goalposts” regarding the length of service of Constitutional Court judges.
Ngcobo’s term ends in mid-August, when he will have served for 12 years as a Constitutional Court judge, the term allowed for under section 176 of the Constitution, which states that only an Act of Parliament can extend the term of a judge of the court.
Last week the Cabinet approved the Bill amending section 8 of the Judges’ Remuneration and Conditions of Employment Act to say that if the chief justice or head of the Supreme Court of Appeal has not completed a period of seven years of active service he or she must continue to serve until seven years have been completed or the judge has attained the age of 75 years, whichever occurs first.
This will effectively extend Ngcobo’s term for another five years.
President Jacob Zuma extended Ngcobo’s term for five years under section 8 of the Act in early June, sparking a court challenge by civil society organisations — the Justice Alliance of South Africa, Freedom under Law, the Centre for Applied Legal Studies and the Council for the Advancement of the South African Constitution.
According to section 8 of the Act, when chief justices become eligible for discharge from service they may “at the request of the president” stay on in the job until they reach the age of 75. But the organisations argue that this is unconstitutional, as it delegates the power to the president to decide whether to extend the term of a chief justice.
They contend that only Parliament can extend the chief justice’s term and that the Constitution does not permit an extension to be granted for an individual Constitutional Court judge or chief justice. It allows for a law that would extend the terms of Constitutional Court judges or categories of Constitutional Court judges generally.
Dene Smuts, the Democratic Alliance’s justice spokesperson, said the debacle put Ngcobo in an untenable position, one in which his court would have had to rule on his term of office.
Following the outcry and lobbying in Parliament, the Cabinet approved the urgent Bill last week, but it did not concede that Zuma’s initial move was unconstitutional.
Willis, also a former judge of the Labour Appeal Court, has called into question the lengths gone to to extend Ngcobo’s term of office. In his submission he argues that Constitutional Court judges are appointed for a limited term to protect judicial independence. The limited terms were envisaged to accommodate the “progressive principle” of putting faith in systems rather than in individual men and women.
A series of “convoluted legal measures”, however well-intentioned, have since been adopted to give these judges the same comfort and security as other judges in South Africa but, “ironically, important principles of constitutional law were eroded at the very apex of our legal system”, he says.
“Extending the term of office of the chief justice is a measure of convenience. It is quite absurd and wrong, in principle, to imagine that we in South Africa are so utterly dependent on the skills of any individual serving in the judiciary that we need special legislative measures to extend the terms of any of its members.”
Willis argues that, instead of passing the Bill, more important issues need to be addressed. These include vesting the decision to appoint the chief justice, the president of the Supreme Court of Appeal and Constitutional Court judges with the Judicial Service Commission (JSC) and not the president and restructuring the JSC so that it has “fewer politicians, [and] more retired judges, leaders of faith communities, trade unions and businesses serving on it”.
The court challenge by the civil society organisations will be heard on July 19, despite the introduction of the Bill, according to Lawson Naidoo, spokesperson for the Council for the Advancement of the South African Constitution. “While we welcome the Bill, until such time as the legislation is passed, we will continue with the case, as we cannot pre-empt what Parliament will decide.”