Get more Mail & Guardian
Subscribe or Login

Validity of chief justice tenure extension questioned

The Constitutional Court will have to decide whether the president’s extension of their boss Chief Justice Sandile Ngcobo’s tenure is valid or not, following argument at the court in Johannesburg on Monday.

Ngcobo himself chose not to be present and did not brief counsel either, choosing rather to accept what the court decided.

Seven lawyers tackled what one of the justices, Johan van der Westhuizen, said could have ramifications for decades.

Earlier this year, President Jacob Zuma was advised by the minister of justice that Ngcobo’s seven-year term of office as a judge would end at midnight on August 14 this year, and he would have to leave his position.

His options were to extend Ngcobo’s term, or appoint another chief justice.

Zuma wrote to Ngcobo and asked him to stay on for another five years, and on June 2 Ngcobo agreed.

Zuma informed political parties and the Judicial Services Commission, which interviews judges for vacancies and then refers their candidate choices to Zuma for the final say.

However, although the applicants pointed out that they were not questioning Ngcobo’s integrity or skills, they believe that in terms of the Constitution, it should have been done through an act of Parliament and that the way Zuma did it was unconstitutional.

“The debate before the court does not relate to the competence or otherwise of the chief justice or his skills and abilities,” said advocate Vincent Maleka, submitting argument for the Council for the Advancement of the South African Constitution (Casac).

Casac, Freedom Under Law, Justice Alliance of South Africa and the Centre for Applied Legal Studies contend that Section 8(a) of the Judges Remuneration and Conditions of Employment Act 47 of 2001 is inconsistent with Section 176(1) of the Constitution because the Constitution provides for the extension by an act of Parliament.

They believe the delegation of power by Parliament to the president is too wide, with no guidelines on possible abuse of power, that 176(1), that the Constitution places an obligation to consult with the JSC and political parties before making an extension, and that there is no Section 176(1) precludes the extension of the term of office of a particular Constitutional Court judge.

Kemp J Kemp, representing the president, submitted that the president has the discretion to make the extension and perceptions that he would favour or disfavour an individual were “totally unrealistic”.

Kemp also rejected a suggestion earlier by Judge Johan van der Westhuizen that judges looking for an extension, or not, would work differently depending on whether they wanted to stay on or not.

Advocate Marumo Moerane, for the minister of justice said: “I think it is important for everybody to know whether this section is unconstitutional and whether to take remedial action.”

He pointed out that a pending amendment to the “judges Act” would expunge 8(a) in its current form.

The amendment, if passed, stipulates that a judge can stay in his or her position for 12 years, or until they are 75 years old, whichever comes first.
Public hearings on the Bill are supposed to take place at the end of July.

The National Association of Democratic Lawyers believe that if the provision used was unconstitutional, the court should suspend the invalidity and offer Parliament a chance to fix the defect.

The lawyers hoped that judgment would be handed down before August 15. — Sapa

President Jacob Zuma has nominated Constitutional Court judge Mogoeng Mogoeng as the new Chief Justice. For more news on the controversy surrounding the appointment click here.

Subscribe to the M&G

Thanks for enjoying the Mail & Guardian, we’re proud of our 36 year history, throughout which we have delivered to readers the most important, unbiased stories in South Africa. Good journalism costs, though, and right from our very first edition we’ve relied on reader subscriptions to protect our independence.

Digital subscribers get access to all of our award-winning journalism, including premium features, as well as exclusive events, newsletters, webinars and the cryptic crossword. Click here to find out how to join them and receive a 40% discount on our annual rate.

Jenni Evans
Jenni Evans
Journalist at News24. Love reading, sunshine.
Jenni Evans
Guest Author

Related stories

Advertising

Subscribers only

Seven years’ radio silence for taxpayer-funded Rhythm FM

Almost R50-million of taxpayers’ money has been invested but the station is yet to broadcast a single show

Q&A Sessions: Zanele Mbuyisa — For the love of people-centred...

She’s worked on one of the biggest class-action cases in South Africa and she’s taken on Uber: Zanele Mbuyisa speaks to Athandiwe Saba about advocating for the underrepresented, getting ‘old’ and transformation in the law fraternity

More top stories

Finding an HIV vaccine: Five lessons from the search for...

The Covid-19 pandemic has shown that vaccine development and testing timelines can be shrunk from decades to months, but not without shortcomings

Pandemic leaves 1.4 billion learners worldwide behind on education

Human Rights Watch warns that learners may take years to recover from the damage caused by school closures

Israel-Palestine: It’s a myth that there are two equal sides...

BDS South Africa calls for the world to listen to what Israel’s actions are saying and apply full sanctions against that apartheid state

Tekkie Town’s Steinhoff fight: ‘We will get our business back’

Bernard Mostert on the ordeal of losing a business he helped build and the fight to get it back
Advertising

press releases

Loading latest Press Releases…
×