Another ANC climb down, this time on Chief Justice Sandile Ngcobo

29 June 2011 - 11:03
By Brendan Boyle

The government has accepted that the procedure President Jacob Zuma used to extend the term of Chief Justice Sandile Ngcobo could be inadequate and is working with MPs on a last-minute bid to secure his position.

ANC delegates in parliament’s justice committee yesterday reversed their earlier rejection of a special act of parliament to ratify the renewal of Ngcobo’s term and made special arrangements to race a bill through to the National Assembly before August 15.

It was the second ANC climb down in a week.

Last Friday, after years of stone walling, the ANC agreed to major changes in the controversial Protection of Information Bill.

President Jacob Zuma promoted Ngcobo from judge in the Constitutional Court to chief justice in 2009, when he had just 18 months of his non-renewable term on the country’s senior court to go. Ordinarily, Ngcobo would have to retire on August 15, after serving a full 12 years on the Constitutional Court.

But Zuma used a previously untested clause in the Judges’ Remuneration Act a month ago to extend Ngcobo’s term by a further five years.

Though virtually no one has objected to the man, several non-government groups have launched a challenge against the procedure used to extend his term.

In an attempt to avert a crisis, the National Assembly voted last week to support Ngcobo’s extension in principle, but that was not enough to satisfy legal advisers.

Now government legal advisers appear to have warned the presidency or the justice ministry that Zuma’s action could be struck down and that if that happened there would be no way to keep Ngcobo on.

“I told you so,” said DA justice spokesman Dene Smuts, who asked the justice committee two weeks ago to table a one-line bill extending Ngcobo’s term.

After initially asking for time to think about it, ANC members quickly decided to reject the plan. Now, with the National Assembly already shut down and parliament in recess from Friday, it is too late to follow that route.

“It is unfortunate that our proposal was not accepted right from the start, and it is unforgivable that the Presidency, Ministry of Justice, and ANC MPs have allowed an intolerable situation to deteriorate even further,” Smuts said yesterday.

Luwellyn Landers, chairman of the justice committee, told (Name of Paper) that discussions had been held outside of parliament about the best way to avert a crisis over Ngcobo’s term.

He said the minister of justice, Jeff Radebe, was expected to submit a brief bill to parliament within the next few days. Committee staff would ensure that it was advertised promptly to enable public hearings and make it possible to enact the bill as quickly as possible.

Landers and Smuts said they did not know whether Radebe would opt for a one-line bill extending the term of Judge Ngcobo or for an amendment to existing legislation to make it possible to extend the term of a chief justice to a minimum of five years.

Landers declined to say who had taken the initiative for the rescue bid, but said it appeared that state law advisers had realised that the action to contest Zuma’s procedure could succeed and that Ngcobo could be forced to retire.

“This is not an attempt by us in the committee or anyone else to say to the President that he was wrong. You need certainty. That is the only concern,” he said.