One of outgoing Chief Justice Sandile Ngcobo’s last jobs will be to chair a special sitting of the Judicial Services Commission (JSC) to discuss the public interviewing of whoever President Jacob Zuma chooses to succeed him, JSC spokesperson Dumisa Ntsebeza said on Monday.
This follows a dramatic about turn last week of Ngcobo’s initial acceptance of an offer by Zuma to extend his term by five years, and a ruling the following day by the Constitutional Court, which he heads, that Zuma’s extension of his term under Section 8(a) of the Judges Remuneration Act was unconstitutional because he had not first consulted political parties and Parliament.
“The interview will take place in public,” Ntsebeza said.
Further details were not immediately available, but the special sitting was called by Ngcobo as chief justice, in terms of the provisions of Section 174(3) of the Constitution, for the interviewing of who the president would appoint, this time preceded by consultation with the JSC and leaders of the political parties in the National Assembly.
Ntsebeza said the section seemed to envisage a consultative process but he was not sure that it envisaged an invitation to apply for, or to receive applications for the position.
“… nor has that ever happened in this country before,” he said.
He said former president Thabo Mbeki put forward former chief justices Pius Langa and Deputy Chief Justice Dikgang Moseneke as preferred candidates without calling for nominations.
Ngcobo himself was interviewed at JSC hearings in Kliptown, Soweto, in September 2009 after earlier being identified by Zuma as the “preferred candidate” to succeed Langa as chief justice .
At the time, Zuma had to weather a similar storm after he said that his announcement on August 6 2009 that he had “appointed” Ngcobo before consulting political parties, was a slip of the tongue.
Ngcobo was his “preferred candidate”, he said in response to questions in Parliament on August 26 of that year.
Ngcobo was interviewed at Kliptown with 21 other people for eight vacancies on the bench at the Constitutional Court and Zuma said he had already written to the opposition to inform them of this.
The letter to parties asking for input on Ngcobo had only arrived after the “slip” but Zuma defended this, saying that once a letter was written it was not possible to know when it would arrive.
In July this year Zuma said that he had extended Ngcobo’s term after being informed that he would retire on August 14.
However, several organisations such as Freedom Under Law challenged the manner in which he had done this, arguing successfully in the Constitutional Court, with Ngcobo not present, that a president appointing a chief justice without consulting opposition parties and Parliament, was unconstitutional.
The court heard at the time that one of the reasons was that while it did not question Ngcobo’s integrity, that process did not provide sufficient protection from abuse.
Around the time of the 2009 interviews, Ngcobo was also disparagingly referred to as a “seat warmer” for Judge John Hlophe, who also interviewed for a position at the court, and who was at one time accused of trying to sway two judges preparing a ruling concerning Zuma before he became president.
Hlophe, who is Western Cape chief justice, did not make the promotion to the Constitutional Court.
Zuma’s spokesperson Mac Maharaj told Sapa that the processes to find a replacement for Ngcobo by August 15 were underway.
“It is under way and we have assured the public that the appointment will be made before then.
“The president is going to consult the JSC and the leaders of the political parties,” he said. — 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.
