Justice served

CHIEF Justice Sandile Ngcobo should have known better.

Politicians, especially those who want to rise or cling to power at all cost, are not the type that can be trusted to protect the credibility of people of good standing in society.

Ngcobo was seduced by the prospects of staying longer in office. Regrettably, he forgot to reach out to his judicial sensibilities, which would have told him to exercise caution.

Now, after a solid legal career, including 12 years in the Constitutional Court, he exits the judiciary at midnight on August 14 this year, with egg on his face.

Legal historians will classify the 56-page Constitutional Court judgment handed down on July 29 as among the most notable to have emerged out of South Africa.

The reason for the indelible contribution it makes in our jurisprudence lies not exclusively in its findings, but the fact that it dents his legacy.

For all the years he had spent in the judiciary, who on Earth in their crazy minds would have thought that the Chief Justice of the Republic would be cited as a respondent in a judgment penned by his colleagues?

The ruling's significance goes beyond setting a precedent.

It makes it plain that the law that President Jacob Zuma invoked to extend Ngcobo's term by another five years is unconstitutional, as it exposes the highest court in the land to undue political interference. Ngcobo should have known that being an increasingly litigious society that South Africa has become, especially on constitutional matters, Zuma's decision was bound to be challenged.

What makes matters worse for Ngcobo is that in his letter of acceptance of the extension of his term, now part of a court record that will never be erased, he raised not a single reservation about potential violations of the Constitution.

At the heart of the Constitutional Court judgment is a spirited attempt by all 10 judges to protect its independence from political interference.

They argue that the discretionary powers of the President to extend a term of office of any of the courts raises the spectre of judicial favours.

Judicial independence, according to the judgment, rests on, among other things, the security of a non-renewable tenure. Only Parliament can extend the term of a specific judge through a specific law, not a blanket one. That law itself ought to pass constitutional muster in that it has to safeguard judicial independence.

The judgment is crafted in a manner that will make it difficult for judges to have their terms extended by an Act of Parliament as such an Act would have to be justified. A simple majority required to pass a law, it is clear, won't be enough.

"It is well established on both foreign and local authority that a non-renewable term of office is a prime feature of independence," the judgment reads.

Presidential discretion to renew the terms of judges violates the separation of powers.

Ngcobo had withdrawn his acceptance on July 27, two days before the judgment was handed down. This raises questions about his leadership qualities.

Long before the disparate civil society groups sought to challenge the constitutionality of the law Zuma had invoked, Ngcobo had ample time to think.

Firstly, it is hard to imagine Zuma would not have spoken to him informally before sending him the official letter asking him to stay on until August 15 2016.

Secondly, once there was noise triggered by the Zuma letter of extension on April 11, he could have changed course.

Thirdly, once there were formal proceedings to challenge Zuma's intention, he should have realised the traffic light was red.

Did Zuma lean on him to stay on regardless of the mounting evidence that the matter was boiling to a crisis point and regardless of Ngcobo probably protesting against potential harm the crisis was going to cause to the judiciary as a whole? The answers to these questions will remain unknown - for now. But the events leading to the judgment gives an impression of a chief justice out of touch with the court he is leading.

But critics will argue that he was assured of all political support, including pending amendments to the unconstitutional Section 8 of the Judges' Remuneration and Conditions of Employment Act.

This guaranteed political support, they will argue, lends credence to the view that he would have been amenable to political interference by Zuma's executive.

Perhaps even more strikingly, Ngcobo did not realise that in terms of the philosophical make-up of the Constitutional Court, he belongs to a minority.

The judicial activists whose interpretation goes beyond the text are far more dominant than those who subscribe to judicial restraint, which includes deference to Parliament and the executive. Ngcobo belongs to the latter.

Nowhere is this much clearer than in the famous Scorpions judgment. In that case Deputy Chief Justice Dikgang Moseneke and Judge Edwin Cameron wrote a majority opinion, arguing that the Scorpions were far more independent than the Hawks as currently constituted and that Parliament was obliged to establish an independent anti-corruption body.

A line in that judgment should have told Ngcobo something - "A renewable term of office, in contradiction to a non-renewable term, heightens the risk that the office-holder may be vulnerable to political or other pressures".

Placing an anti-corrupting unit under the head of the NPA, whose term is non-renewable, gives it a good measure of independence.

Ngcobo had a different take: "The Constitution does not explicitly require the establishment of an independent anti-corruption unit."

Unfortunately, as a respondent, he had no chance to dissent on the matter about Zuma's ill-fated attempt to renew his term.

Ngcobo's exit from the Bench is far from being dignified.

• Mpumelelo Mkhabela is the editor of the Daily Dispatch