In “The Old Regime and the Revolution”… Alexis de Tocqueville observed that, in the decades leading up to the Revolution, France had been notably prosperous and progressive. We hear a lot about the hunger and the song of angry men, and yet the truth is that, objectively, the French at the start of the seventeen-eighties had less cause for anger than they’d had in years. Tocqueville thought it wasn’t a coincidence. “Evils which are patiently endured when they seem inevitable, become intolerable when once the idea of escape from them is suggested,” he wrote.
News that Chief Justice Sandile Ngcobo has decided to withdraw his acceptance of an extension of his term of office by President Jacob Zuma and that he will step down on August 14 must be welcomed. Unfortunately the Chief Justice had unwisely accepted an extension of his term despite the fact that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act on which the President relied was almost certainly unconstitutional.
The inevitable controversy that resulted from this move by President Zuma threatened the integrity of both the office of the Chief Justice and the person of the incumbent. The government made things worse by refusing to admit that the section on which the President had relied might be constitutionally problematic and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of section 8(a) were motivated by a hatred for the Chief Justice.
By personalising and politicising the issue, the Justice Minister placed Chief Justice Ngcobo in an almost impossible position and the government’s original intransigent stance threatened to destroy the integrity of a judge who has served South Africa with distinction.
By then – belatedly – proposing an amendment to the Act that would only extend the term of office of the Chief Justice and the President of the Supreme Court of Appeal (SCA), the Justice Minister further complicated matters as it was far from clear that this new proposal would pass constitutional muster.
Why the Minister and the President had not thought of whether section 8(a) was constitutional and what other legal mechanism could be used to extend the term of the Chief Justice a year or two ago and why it tried to cook the books, so to speak, at the last minute is a question that must be asked. It suggests that either the Minister’s office or the Presidency – or perhaps both – are not on top of the legal issues and do not plan properly. How can one govern a country when one does things at the last minute in the hope that one can bluster one’s way through by denigrating those who insist on upholding the Constitution?
The big losers in this affair are Minister Jeff Radebe and, sadly, the incumbent Chief Justice, who got mixed up in the bumbling of the Ministry of Justice. If he had not decided to resign he would have for ever been tainted because of the incompetence of the Minister. His decision to resign, rather than to be seen to be used by the Executive, saves his reputation.
By resigning Chief Justice Ngcobo is displaying the kind of integrity and respect for his office and for that of the Constitutional Court that those of us who have always admired him, came to expect from him. It spares us all from the rather destructive effects of a long drawn out fight which would have resulted from, first, the declaration of invalidity of section 8(a) and second, the declaration of invalidity of the hastily drafted unconstitutional amendments to the Judges’ Act.
The big question now will of course be who President Zuma will appoint as Chief Justice. Constitutionally he can appoint any qualified person to that post. It does not have to be someone who has served on the Constitutional Court. Nevertheless, I believe it would be undesirable to appoint someone who has not served on the Constitutional Court, because it would introduce an element of blatant politics which have bedevilled the appointment of judges in the USA, where Chief Justice John Roberts were appointed by George W. Bush to that office despite not having served as a judge on the US Supreme Court.
A Chief Justice leads both the judiciary and the Constitutional Court. It is therefore important that such a person should enjoy confidence from among his or her colleagues on the Constitutional Court. This would be more likely if the Chief Justice is elected from amongst the members of the Court. Even if one wished to make a politically “safe” appointment one would want to appoint someone with potential influence over his or her fellow judges on the Constitutional Court, something that an outsider might not as easily enjoy as someone currently serving on the court. A successful Chief Justice runs the judiciary but also builds alliances on the Constitutional Court to secure majorities for the outcome of important cases. An outsider will not be as successful in doing this than an insider.
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. Of course Deputy Chief Justice Dikgang Moseneke is the obvious candidate, who 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.BACK TO TOP