Sandile Ngcobo's resignation surprise

The surprise decision by Chief Justice Sandile Ngcobo to resign has little bearing on the stand-off that has developed between parliament and the Constitutional Court about the extension of a chief justice's term of office.

President Jacob Zuma announced last month that he had used section 8(a) of the Judges Remuneration and Conditions of Employment Act, known as the Judges' Act, to extend Ngcobo's term for five years.

The section provides that a chief justice may, at the "request of the president" remain in office for a period determined by the president, but only until he reaches 75.

This is an exception to the general rule that a Constitutional Court judge serves for 12 years, or until the age of 70, whichever comes first.

Civic society organisations, including the Centre for Applied Legal Studies, the Justice Alliance of SA and the Council for the Advancement of the SA Constitution, cried foul and launched an urgent application in the Constitutional Court to have section 8(a) of the act declared unconstitutional. Their litigation will continue.

The case for direct access to the court was heard two weeks ago, with lawyers for the civic organisations arguing that section 8(a) conferred a power on the president that the Constitution reserves for parliament.

Lawyers also argued that the section interfered with the independence of the judiciary because a chief justice would have a personal interest in winning the president's favour if he wanted to improve the chances of his term being extended.

Papers filed during the court case included Ngcobo's acceptance of the extension of his tenure, dated June 2.

Ngcobo told Zuma that he had decided to "accede to the request and continue to lead the judicial branch of the government during this critical time of the transformation of the judiciary and judicial systems".

The pending Constitutional Court judgment has been complicated by the fact that a draft amendment to the Judges Act is in front of the parliamentary portfolio committee on justice and constitutional development.

The draft proposes that, if a chief justice has not served for seven years when he becomes eligible for discharge - the situation Ngcobo is in - he must continue to serve until he reaches the age of 75, or serve the seven years.

This means that the Constitutional Court is considering the constitutionality of legislation while parliament is considering an amendment to it.

Zuma has less than a month left in which to find a successor to Ngcobo.