Thu Dec 08 16:19:47 SAST 2016

Unsatisfactory testimony

Eusebius McKaiser | 2011-07-29 00:15:52.0
A sitting of the Constitutional Court. File photo.
Image by: ALON SKUY

On Wednesday, a legal and political bombshell hit us all. Chief Justice Sandile Ngcobo, we were told by Justice Minister Jeff Radebe, withdrew his acceptance of President Jacob Zuma's offer that he stay on as chief justice of the Constitutional Court.

The president accepted Ngcobo's change of heart. Why did he do so? What now? And what are the implications for all of us, and for the Constitutional Court in particular?

First, it is surprising that Ngcobo is receiving mostly uncritical praise for his decision. Though it is good not to 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 that there is compelling doubt about the constitutionality of the clause in the Judges' Remuneration Act in terms of which Zuma had made him the offer to stay on.

He should either have gently alerted Zuma 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, instead of with sound constitutional sense, motivated this last-minute withdrawal.

Second, a couple of remarks made by Mac Maharaj around this issue, on behalf of Zuma, are deeply disturbing. Maharaj has reportedly stated that there is now no need for the litigation before the Constitutional Court to continue, or 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 It is, therefore, utterly irrelevant whether the chief justice has withdrawn his decision to stay on. 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 that the highest court on constitutional matters pronounce on the constitutionality of the clause. Ngcobo's decision to withdraw is beside the point. In 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 the government simply wanted an individual's career to be protected.

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

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

So, what next? First, the Constitutional Court must still hand down judgment and that will not change. We will still hear whether 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 the bill distinguishes between "ordinary" justices and the chief justice, and some legal experts claim that such a distinction might be constitutionally unacceptable. In addition, there is a concern that the bill, if enacted, would give the president unconstitutional powers to decide the fate of a chief justice no longer mentally fit to hold that office, usurping a job that is 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, it is hoped, will not decline, even if it is permitted to) 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 the Constitutional Court? Of course, it is not compulsory for the deputy chief justice to become the chief justice. But, let's face it, Deputy Chief Justice Moseneke, among a number of acceptable candidates, is the best of 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 deputy chief justice for years, and his sole sin is having the audacity to state the obvious: that the judiciary is accountable to no political party, not even 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 be because his commitment to constitutional supremacy has left a bad taste in the mouth of thin-skinned politicians.

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

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