Sandile Ngcobo's bombshell decision

Eusebius McKaiser questions the uncritical praise heaped on the Chief Justice

On Wednesday, a legal and political bombshell hit us all. Chief Justice Sandile Ngcobo, we are told by the Minister of Justice, Jeff Radebe, withdrew his acceptance of the offer to stay on as Chief Justice of South Africa's Constitutional Court. The president has accepted Ngcobo's change of heart. Why did he do so? What now? And what are the implications for all us, and the Constitutional Court in particular?

First, it is surprising that Ngcobo is receiving mostly uncritical praise for his decision. While it is a good thing to not criticise judges willy-nilly, and the judiciary more generally, when it is justified to pass criticism we ought to do so. Ngcobo has been aware for months already that there is compelling doubt about the constitutionality of the statutory clause in terms of which the President had made him the offer to stay on.

He should have either gently alerted the Presidency to these concerns back then or declined the offer. The timing of this withdrawal is curious. One cannot but help speculate that the embarrassing prospect of one's constitutional peers handing down a judgment that inadvertently shows you to have acted self-interestedly, rather than with sound constitutional sense, motivated this last minute withdrawal. 

Second, a couple of remarks made by Mac Maharaj around this issue, on behalf of President Zuma, are deeply disturbing. Maharaj has reportedly stated that there is now no need for the litigation before the constitutional court to continue, nor for the proposed amendments to the Judges' Remuneration Act to be considered by Parliament.

This shows a shocking disregard for constitutional processes. The point of the litigation was never to test Chief Justice Ngcobo's fitness for office. It is therefore utterly irrelevant whether or not the Chief Justice has withdrawn his decision to stay on as Chief Justice. The point of the case before the court is to test the constitutional validity of section 8(a) of the Judges' Remuneration Act. The judgment must and will therefore still be handed down.

It is important for the highest court on constitutional matters to pronounce on the constitutionality of the clause in question. Ngcobo's decision to withdraw is beside the point. Within this context, Maharaj's remarks betray a worrying misunderstanding of the point of constitutional litigation.

Politically speaking, however, Maharaj's comments are even more problematic. If the litigation should be halted, and the proposed amendments to the Judges' Remuneration Act abandoned, in light of Ngcobo's decision, then Maharaj is accidentally betraying the truth.

The proposed amendments to the Judges' Remuneration Act were proposed purely because the President wanted Ngcobo to stay on. This matters. It means that our government did not intend to pass a law of general application that is good in itself, and good for the institution ‘office of the Chief Justice'. It means that they simply wanted an individual's career to be protected.

This is a bad attitude towards law making. Laws should be designed with a view to creating institutions, and institutional practises and conditions, that are sound safeguards of our constitutional order. We should not be designing laws around individual personalities.

That is exactly what motivated government in this case, if Maharaj's remarks are taken at face value. Let's hope that Maharaj's remarks are not a true reflection of the views of his political principal.

So what next? Firstly, the constitutional court still needs to hand down judgment, and that will not change. We will still hear whether or not Section 8(a) of the Judges Remuneration Act is constitutionally fit for purpose.

As for the proposed amendments before Parliament, the fate of that Bill is also still up for grabs. There are two chief worries: one pertains to the fact that that Bill distinguishes between ‘ordinary' Justices and the Chief Justice, and some legal experts claim that such a distinction might be constitutionally unacceptable; and, in addition, there is a concern that the Bill gives the President unconstitutional powers to decide the fate of a Chief Justice no longer mentally fit to be Chief Justice, bypassing a job normally the business of Parliament.

So, the future of these proposed amendments will depend, in part, on what the court says in its judgment coming out soon. The court was invited (and hopefully will not decline even if it is permitted to decline) to comment on the constitutionality of at least some aspects of the proposed amendments to the Judges' Remuneration Act.  

We must, of course, deal with the big elephant in the room: who will be the next Chief Justice of South Africa's constitutional court? Of course it is not compulsory for the Deputy Chief Justice to automatically become the Chief Justice. But, let's face it, Deputy Chief Justice Moseneke, among a number of acceptable candidates, is the best among the lot.

He is a brilliant jurist, well respected by his peers on the bench, and by almost everyone across the legal fraternity. He has demonstrated great leadership as the Deputy Chief Justice, for years, and his sole sin is the audacity to state the obvious: that the judiciary is accountable to no political party, including the African National Congress.

Its job is to uphold the constitution as the supreme law of the land. How can such an incredibly dull truism about the meaning of constitutional supremacy get you into trouble? If Moseneke does not become the next Chief Justice, it will merely be because his commitment to constitutional supremacy has left a bad taste in the mouths of thin skinned politicians. 

Mr President, do the right thing, and prove sceptics wrong by demonstrating that your skin is thicker than your predecessor's. We wait with bated breath.

Eusebius McKaiser is a political analyst at Wits University

Click here to sign up to receive our free daily headline email newsletter