More than 20 journalists and a slew of judicial royalty packed the main court room at the Constitutional Court on Thursday morning to mark the exit of Chief Justice Sandile Ngcobo, who officially retires from the position on August 14.
Ngcobo cut a humble figure, despite his green silk gown, as he read his final judgment, which found it unconstitutional for provincial governments to pass their own financial laws, with specific reference to the financial management outlined in the Limpopo Provincial Legislature Act. Ngcobo also noted that the Gauteng, Free State, Eastern Cape, Mpumalanga and North West provincial legislatures had independently pronounced on legal matters and would need to make representations to the Constitutional Court to verify the constitutionality of their decisions.
‘This is vintage Ngcobo and completely in line with what the Constitutional Court has said before on the matter,” Professor Pierre de Vos, constitutional expert at the University of Cape Town, said after the ruling. ‘It’s a very narrow interpretation of the Constitution — nothing controversial.”
This is quite the opposite to the circumstances surrounding Ngcobo’s retirement, which created a political skirmish to try to secure an extension of his term of office, which began in October 2009. In July, President Jacob Zuma granted Ngcobo an extension of five years, but after challenges to the legality of the processes followed in making the decision, Ngcobo declined the offer — after initially accepting it.
Although the straightforward ruling on his final judgment didn’t surprise the legal fraternity, the man known by some for his ‘incredibly intimidating presence in court” and his ‘imperialist behaviour”, in contrast to his predecessors Arthur Chaskalson and Pius Langa, was tempered by a self-effacing grace while making his exit.
Both Chaskalson and Langa, and former Constitutional Court judges Richard Goldstone and Albie Sachs, were among the legal fraternity’s elite who had come to pay homage to Ngcobo.
‘Chief Justice Ngcobo’s struggle for the freedom of the judiciary was unending. He was never scared to make an unpopular judgment providing it upheld the values and principles of the court he served,” said Deputy Chief Justice Dikgang Moseneke, who was overlooked for the chief justice position in 2009 and, according to court insiders, will probably be overlooked again when Zuma chooses Ngcobo’s successor.
‘The independent thinker’
High praise came from Justice Minister Jeff Radebe, who knew Ngcobo from their time together at the University of Zululand in the 1970s.
‘You have always been a man with an independent mind. You have never showed fear, favour or prejudice, even when your view was in the minority. I applaud you for having run the full course in South Africa’s justice system with honour and respect,” Radebe said.
Ngcobo, who completed his LLB at the then University of Natal and later attended Harvard Law School, was appointed a judge in the Cape High Court in 1996. He also served as a judge in the Labour Court before joining the Constitutional Court in 1999.
But it was his dissenting judgment on Zuma, who was facing corruption charges in 2008, that caused many to wonder whether he was courting favour with the future president, something that has hung over much of his time at the Constitutional Court.
During an address to the gathering, Ngcobo may have added credence to this notion — he reiterated his conciliatory stance towards other branches of the government and called on the judiciary itself to tread carefully in exercising its powers.
‘The powers we exercise are far-reaching but we must operate with humility, ensuring that other branches of government play by the rules while at the same time offering them adequate space to perform their duties,” Ngcobo said.
He also called on all South Africans to unite in upholding the values in the Constitution.
‘I encourage you to think of yourself as the holder of the rights and responsibilities enshrined in our Constitution and we must think about how we as South Africans contribute to building our country,” he said.
Ngcobo promised never to stop serving his country. ‘This may be the last day I am a servant of this court but it’s certainly not my last day as a servant of this constitutional democracy,” he said. ‘I look forward to watching our country grow and flourish.”
Waiting game
South Africa will have to wait until ‘the end of the month at least” to learn who its new chief justice will be, says presidential spokesperson Mac Maharaj.
Deliberations in the presidency on a successor to Chief Justice Sandile Ngcobo, whose term ends on August 14, are ongoing, Maharaj said. President Jacob Zuma will have to consult the Judicial Service Commission (JSC) and opposition party leaders in Parliament before announcing the successor.
‘We definitely won’t meet the August 15 deadline, but we are moving as quickly as possible and an announcement will likely happen by the end of [this month],” said Maharaj.
At the time of going to press, JSC sources said the president had yet to inform them of any nominations.
Ngcobo had scheduled a public sitting of the JSC in Cape Town on August 12 to interview nominees. But JSC secretary Sello Chiloane said the sitting had been postponed ‘until the presidency contacts the JSC on [its] nomination”.
Addressing media owners last Friday, Zuma announced his decision to ‘delay the appointment in order to give greater effect to the provisions of section 174 (3) of the Constitution of the Republic of South Africa”.
The section instructs the president to consult the JSC and leaders of opposition parties before making the appointment. Zuma said ‘the interest of justice and that of broader society will better be served” by the delay.
These moves suggest the presidency is treading carefully around both the constitutional and procedural imperatives of the appointment. Zuma’s administration had its fingers burnt recently when the Constitutional Court found that the legislation he had used in an attempt to extend Ngcobo’s tenure was unconstitutional.
Constitutional Court Justice Sisi Khampepe is thought to be the frontrunner for the position. Supreme Court of Appeals president Judge Lex Mpati is favoured by the legal community if Deputy Chief Justice Dikgang Moseneke is again overlooked. — Niren Tolsi
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.
