Confused by the judicial crisis gripping South Africa? Not quite sure why Chief Justice Sandile Ngcobo is stepping down? Here are the answers you've been seeking.
What exactly is the fuss about Chief Justice Sandile Ncgobo all about?
- Pretty much everyone agrees that Ngcobo has been an excellent chief justice, and had rather liked the idea of him sticking around as the head of the Constitutional Court — despite his term as a ConCourt judge ending on August 15. Especially President Jacob Zuma, who was so keen on the idea that he went ahead and extended Ngcobo's term. Just like that.
- This put a few noses out of joint, and a group of NGOs said that according to the Constitution it was up to Parliament to keep Ngcobo in the job, not the president. They decided to challenge the decision in the Constitutional Court.
- So, although Chief Justice Sandile Ncgobo is extremely respected by all political parties and the legal fraternity, he was suddenly the subject of a case in his very own court.
Who is Chief Justice Sandile Ngcobo?
- Ngcobo was appointed as judge in the Constitutional Court — the highest court in the land — in 1999, by then-president Nelson Mandela.
- On August 6 2009, President Jacob Zuma nominated Ngcobo to the position of chief justice.
Ngcobo's shortened CV
- Born in 1953.
- Visiting law lecturer at Harvard University and at Columbia Law School in the United States.
- Judge at the Truth and Reconciliation Commission, the Labour Appeals Court and the Cape High Court.
Why is Ngcobo leaving the Constitutional Court?
- Constitutional Court judges are allowed to serve a maximum of 12 years, according to the Constitution. Ngcobo's 12-year term was set to expire on August 14.
- Many people in the legal and political fraternity wanted him to stay on as chief justice, praising him as being impartial, perfectly suited to the position, and in need of more time to complete his work. He has been hailed for setting up a disciplinary tribunal for judges, and entrenching the Constitutional Court as the apex of South Africa's legal system.
- On June 3, President Jacob Zuma announced to the Judicial Services Commission and to political parties that he had extended the chief justice's term of office.
- He used Section 8(a) of the Judges' Remuneration and Conditions of Employment Act of 2001 to do this. The Act states the chief justice may stay on, "at the request of the president", for a time the president sees fit.
- But Section 176(1) of the Constitution reads that only an Act of Parliament can extend the term of a Constitutional Court Judge.
- This is to prevent one person having too much influence over the functioning of the courts that are supposed to be free from political and other interference.
What was the response to President Zuma's extension of Ngcobo's term of office?
- The Wits Centre for Applied Legal Studies, Freedom Under Law, the Justice Alliance of South Africa, and the Council for the Advancement of the South African Constitution, took Zuma, Justice Minister Jeff Radebe and the department of justice to the Constitutional Court.
- They felt the decision to extend his term of office interfered with the judicial independence of the court, gave the president too much power and contradicted section 176(1) of the Constitution.
- One of the attorneys acting for the group, Wim Trengrove, said the extension could mean that "the chief justice has a personal interest in winning the president's approval". It was not believed Ngcobo was doing that, however, but the principle remained.
- Kemp J Kemp, acting for Zuma, countered this, saying only a "totally unrealistic person", would think Section 8(a) of the Judges' Remuneration Act could mean every judge "is now going to be very nice to the ruling party, or whomever, because it will increase their term".
- The Constitutional Court was due to rule on the matter on Friday, July 29 2011.
What is this Parliamentary amendment Bill that was supposed to solve the problem?
- In a bid to keep Ngcobo in office and underwrite President Zuma's decision to extend the chief justice's term of office, the Cabinet on July 7 approved an amendment Bill to the judges' remuneration Act. The Bill says that if the chief justice has not spent seven years in the position, he or she must do so for that long or until the age of 75. This Bill also applies to the president of the Supreme Court of Appeal.
- This was seen as back-peddling by the president and justice minister as the amendment took away the power of the president to extend the term of a chief justice.
- The Bill would have had to be passed through Parliament before midnight of August 14, when Ngcobo's term would have expired.
Why didn't the Bill solve the problem?
- Legal experts questioned the constitutionality of the amendment Bill.
- The problem was that section 176(1) of the Constitution allows an Act of Parliament to extend all Constitutional Court judges' terms of office but does not allow it to single out a particular judge.
- Other questions were raised about why exactly the term of seven years was decided upon.
- On July 28, the ANC announced that, following Ngcobo's decision to step down, the Bill had been dropped.
Why did Ngcobo resign?
- Ngcobo then resigned to respect the integrity of the Constitutional Court.
- Some legal experts have criticised Ngcobo, saying he knew his acceptance of the extension was unconstitutional and he should not have agreed to it in the first place.
Was he saving his skin?
- Wits political analyst Eusebius McKaiser and Director of the University of Cape Town's Democratic and Governance Rights Unit, Professor Richard Calland said that Ngcobo may have realised his peers were going to rule in the Constitutional Court that the extension of his term of office was unconstitutional.
- There is speculation that this could have embarrassed him, leading him to pre-empted the decision by stepping down.
- But most analysts and political parties have praised Ngcobo, saying it wasn't his fault that he got stuck in the middle of the legal challenge.
Why was the president criticised?
- The president and justice minister have been slammed for dealing with the matter at the last minute and for not finding a better way to extend his term sooner.
- There have been questions about what state law advisors were telling the president and why Zuma ignored advice from legal experts who warned him against extending Ngcobo's term.
Does the court action continue?
- The Constitutional Court will decide on Friday July 29 whether Section 8(a) of the Judges Remuneration Bill contradicts the Constitution.
- Professor Calland says that the only way to constitutionally extend the chief justice's term of office is by changing the Constitution itself, which would take time.
Who will succeed Ngcobo as chief justice?
- President Zuma had until August 14 to decide on who would fill the office of the chief justice, the highest judicial position in the land.
Timeline
- August 15 1999 Chief Justice Sandile Ngcobo becomes a Constitutional Court judge.
August 6 2009 President Jacob Zuma nominates Ngcobo as chief justice.
2011:
March Justice Minister Jeff Radebe informs the president "on and around March" that Ngobo's term ends in August.
April 11 The president writes to Ngcobo and asks him to stay on. Ngcobo replies to the president, accepting in principle Zuma's decision to extend his term.
June 3 Zuma announces to political parties and the Judicial Services Commission that he has extended Ngcobo's term.
June 15 Four civil organisations take Zuma's extension to the Constitutional Court.
June 18 The case is heard by the Constitutional Court. Ngcobo is not involved in the proceedings in court that day.
July 7 Cabinet passes a Bill that allows the chief justice to stay on.
July 22, 26 Written and oral submissions about the Bill are heard by Parliament's portfolio committee on justice and constitutional development.
July 27 Ngcobo announces his decision to step down on August 14.
August 5 President Zuma announces that he will not be appointing a new chief justice by the time Ngcobo resigns. Zuma said he needed more time for "meaningful consultation with leaders of political parties and the Judicial Service Commission" but promises that the delay "would not adversely affect the judiciary". Zuma was supposed to pick a new chief justice by August 14 — a mammoth decision to make in only two weeks.
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.
