Praise for Ngcobo, but 'it didn't have to be like this'

Legal and constitutional experts have expressed mixed feelings about Chief Justice Sandile Ngcobo’s decision to withdraw his acceptance of President Zuma’s extension of his term of office.

They say he has protected the integrity of the Constitutional Court by rendering the president’s decision void, but are saddened by the loss of a judge they say is perfectly suited to the position.

Last month President Jacob Zuma extended Ngcobo’s 12-year term under Section 8(a) of the Judge’s Remuneration and Conditions of Employment Act.

This was met by a Constitutional Court challenge by civil society organisations including Freedom Under Law and the Wits Centre for Applied Legal Studies (CALS), who argued that it was unconstitutional for the president to extend the Chief Justice’s term of office. Only an Act of Parliament may do so, they said.

Professor Ralene Keightley, the director of CALS, said the centre felt vindicated by the Ncgobo’s decision, but added that it was unfortunate it had come so late.

She said some “criticism has to be levelled at the president and Justice Minister Jeff Radebe for extending the tenure of the chief justice’s office”.

Carried on regardless
Keightley said the centre had written a letter to the president and the minister in May explaining that it would be unconstitutional for him to extend Ngcobo’s term, but Zuma had proceeded regardless.

She said Ngcobo’s decision to step down was probably partly due to the legal challenge. Judgment in the Constitutional Court case is expected to take place soon, despite Ngcobo’s decision to step down.

Following the Constitutional Court challenge, Cabinet introduced the Judge’s Remuneration and Conditions of Employment Amendment Bill to allow Parliament to legitimately extend the chief justice’s term by five years.

But this amendment has also faced criticism, with submissions to Parliament suggesting the amendment was also unconstitutional. Keightley said Section 176 of the Constitution only allows Parliament to extend all Constitutional Court judges’ terms of office but doesn’t allow them to single out a particular judge.

She said questions around the constitutional integrity of the amendment bill might also have prompted Ngcobo’s decision to step down.

Constitutionally sound
On Wednesday, the chairperson of the General Council of the Bar, Rashid Vahed SC, praised Ncgobo’s decision to retire as “good for our constitutional democracy” but in the same breath said it was a “sad day for all South Africans”.

He explained that the “controversy and ruckus” around the issue deprived the bench of a man who was of the highest integrity and was very well suited to the job of chief justice. But he added it was a good thing that the law allowed fresh blood to enter the Constitutional Court every 12 years.

Professor Steven Friedman, director of the Centre for the Study of Democracy at the University of Johannesburg said: “It’s a pity, it would have been better for the country if he did stay, based on his performance. There was no malice in the attempt to get a second term but the constitutional process was not followed, and it’s unfortunate he got caught in the middle.”

The Democratic Alliance’s Dene Smuts also said Ngcobo was betrayed by a failure to follow correct procedure. “It was intolerable to put the Chief Justice in this position by firstly extending his term by Presidential discretion under the Judge’s Remuneration Act; and secondly by creating a situation whereby civil society organisations challenged the Act,” said Smuts.

Cynical move
But the director of the University of Cape Town’s Democratic and Governance Rights Unit, Professor Richard Calland had a very different understanding of Ngcobo’s decision to step down, saying the decision had been made because the Constitutional Court was on the verge of striking down legislation that allowed him to stay in power.

But he said not much has changed as he believes Ngcobo will stay on as Chief Justice once Parliament passes a Bill that stands up to Constitutional challenge that allows him to stay in office.

Vahed disagreed, however, saying Ngcobo’s retirement appeared certain.

Zuma is expected to appoint a new chief justice in the next few weeks.

Deputy Chief Justice Dikgang Moseneke has been suggested as a successor by some analysts.

‘But I would not discount the deputy’
Constitutional expert Pierre de Vos wrote on his blog Constitutionally Speaking that “there are excellent judges currently serving on the Constitutional Court. Any number of them would be able to serve with distinction as a chief justice.

The obvious choice was Deputy Chief Justice Dikgang Moseneke, De Vos said. Moseneke “has displayed the intellect, the legal skills, the composure, the respect for the other branches of government, but also the independence that is required to serve successfully as chief justice”.

Friedman, however, said there would be questions over whether the next chief justive would enjoy the same independence as Ngcobo. “I would see Mosoneke as the ideal candidate,” he said, “But seeing as he is not an ANC man, President Zuma and those in charge might see this as counting against him.”

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.

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