Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
Former Chief Justice Arthur Chaskalson is widely respected amongst lawyers and others who follow the work of the Constitutional Court. He was thought to be an excellent Chief Justice and during his term discussions started about extending his term as the head of the South African judiciary. To this end section 176(1) of the Constitution was amended in 2001. The amended provision of the Constitution states that a:
Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.
At the time many constitutional lawyers argued that this amendment was unwise and opposed it. Some lawyers who respected or even revered Chaskalson had a problem with the amendment (generally known as the “Chaskalson amendment”) because it was argued that as a matter of principle it was unwise for politicians to be involved in extending the term of office of a judge — especially the Chief Justice.
The problem, so the opponents of the amendment argued, was that it could create the perception amongst ordinary people that the judge was not independent. Every time the judge ruled in favour of the government, suspicious or cynical commentators (and, let’s face it, that would include almost anyone in the media) would ask whether the particular decision had anything to do with the judge’s ambitions to continue acting as a judge. Where the judge happened to be the Chief Justice this suspicion would become even stronger.
In the event the amendment was passed and, in the same year, Parliament passed the Judges Remuneration and Conditions of Employment Act to give effect to the intention of this constitutional amendment. Section 8 of this Act states that:
A Chief Justice who becomes eligible for discharge from active service… may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active service as Chief Justice of South Africa for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years.
The President can therefore decide to extend the term of Office of the Chief Justice. In the end Chief Justice Chaskalson retired without these sections being invoked. However, it appears as if section 8 of the Act may now be invoked to extend the term of office of Chief Justice Sandile Ngcobo. Justice Ngcobo’s term as a judge on the Constitutional Court comes to an end later this year. He has only been Chief Justice for a short period of time and many would argue that it would be a pity if he had to retire now.
Justice Ngcobo has been an energetic and thoughtful Chief Justice and has initiated many important initiatives, including discussions about important changes relating to the creation of the Office of the Chief Justice. In order to secure the administrative independence of the judiciary, it has also been proposed to change the Constitution to emphasise the fact that the Chief Justice was the head of the entire judiciary.
I am therefore in two minds about moves to extend the term of office of the current Chief Justice. As a matter of principle I endorse the view that the Constitutional Amendment as well as section 8 of the Judges Remuneration and Conditions of Employment Act should never have been passed. It is not in the interest of the judiciary that the term of office of the Chief Justice may depend on a decision by the President.
Although the integrity of the current Chief Justice is beyond reproach and I do not believe that he will ever decide a case based on such considerations, every time the Chief Justice rules in favour of the executive, suspicious individuals might be tempted to speculate about whether this was done to ensure an extension of his term of office.
But perhaps a compromise could be reached that would allow for the extension of the term of office of the Chief Justice to allow him to complete important initiatives that would strengthen the independence of the judiciary, while minimising the damaging speculation in the media about his motivations in deciding a case in a particular manner. President Zuma should interpret section 8 to mean that an extension can only be granted once and must be for a predetermined period of, say, 5 years. When announcing the extension this should be made clear.
This will ensure that if the Chief Justice hands down a judgment in favour of the executive — based on his interpretation of the text of the Constitution, the relevant precedent, and his understanding of the social and economic context in which the decision has to be made — not even the most suspicious and ever-complaining members of our society will be able to charge that the decision was based on anything but legal considerations. This will protect the dignity of the Chief Justice and his office and will inoculate him from any scurrilous charges that he is not sufficiently independent.
In an ideal world, however, the original constitutional amendment as well as section 8 of the Judges Remuneration and Conditions of Employment Act should be scrapped. There were good reasons for the decision of the drafters of the Constitution to limit the term of office of judges of the Constitutional Court to between 12 and 15 years. These amendments subvert the original intensions of the drafters and creates the strange situation in which a Chief Justice could serve for 25 or 30 years on that court while other judges would normally be limited to a 12 year term.
We do not want to follow the US example where a President can decide on who to appoint to the US Supreme Court partly based on how young the person is and how long he or she may serve on that court. Those considerations have arguably subverted the appointment of US Supreme Court justices and the best candidates are not always appointed. (Of course, another reason for this is that the President’s nominees must be confirmed by the Senate and Presidents therefore also choose judges who they believe can be confirmed without too much fuss.)
In any event, it is important that President Zuma handles this matter with the necessary care.BACK TO TOP