Zuma has less than a month to replace Ngcobo

Chief Justice Sandile Ngcobo has reversed his decision to accept an extension of his term of office, telling President Jacob Zuma that he will retire when his term ends next month.

This is a blow to Zuma, who has been pushing hard to keep Ngcobo, 58, in office for another five years.

Ngcobo announcement of his retirement came as a legal challenge is being made to the constitutionality of the president's attempt to extend his tenure.

Justice Minister Jeff Radebe announced the resignation of Ngcobo, a respected jurist who has served on the Constitutional Court since 1999, yesterday.

Ngcobo's U-turn is a surprise. Papers filed in the Constitutional Court include correspondence between him and Zuma in which he accepts the extension.

This has sparked speculation in legal circles that Ngcobo does not want to be seen as having accepted an extension of his term when the possibility exists that the Constitutional Court, sitting in his absence, would declare the extension unconstitutional.

Radebe said yesterday that Ngcobo ''has taken this decision in order to protect the integrity of the office of the chief justice and the esteem [in which] the judiciary as a whole [is held]''.

"Ngcobo said he found it undesirable for a chief justice to be [a] party in litigation involving the question of whether he or she should continue to hold office as this distracts from the office of the chief justice and the esteem in which it is held," said Radebe.

Ngcobo's decision means Zuma has less than a month in which to find a new chief justice. Ngcobo's term ends at midnight on August 14.

In terms of the Constitution, Constitutional Court judges may serve a maximum of 12 years or until they turn 70, unless an act of parliament specifies otherwise.

Presidency spokesman Mac Maharaj yesterday refused to speculate on whom Zuma would appoint as Ngcobo's successor.

"The constitutional requirements are clear. The president will do it in consultation with the Judicial Service Commission and the leaders of all the political parties represented in parliament," Maharaj said.

A senior counsel, who asked not to be named, said Deputy Chief Justice Dikgang Moseneke was widely respected and the "obvious choice" but appeared to have fallen out of favour with the ANC leadership because of comments he made at his 60th birthday party in 2008.

Moseneke reportedly said: "I have another 10 to 12 years on the bench and I want to use my energy to help create an equal society.

"It's not what the ANC wants or what the delegates [to the party's 2007 Polokwane national conference] want; it is about what is good for our people.''

"The president and the cabinet have expressed profound regret at the loss of an outstanding jurist who has contributed immensely to the country's jurisprudence," said Radebe yesterday.

Zuma triggered a legal row last month when he decided unilaterally to extend Ngcobo's term by five years.

In terms of section 8(a) of the Judges' Remuneration and Conditions of Employment Act, the chief justice may, at the "request of the president", retain office for a period the president determines, until he reaches the age of 75.

But the Justice Alliance of SA, the Centre for Applied Legal Studies and the Council for the Advancement of the SA Constitution lodged a Constitutional Court application to challenge the section.

The situation was complicated by parliament considering a proposal - widely believed to be aimed at cementing Ngcobo's extended term - to amend the act.

Radebe, who sat in the public gallery during the Constitutional Court hearing this month, consistently defended Zuma's decision to ask Ngcobo to stay on and the process he used to achieve this.

"The president acted in terms of the Constitution and the law that was passed by parliament in 2000," he said.

Asked if he would withdraw the amendment bill, Radebe said parliament would have to decide that in the light of the new developments.

Dene Smuts, a DA MP serving on parliament's justice portfolio committee, said the government's poor handling of Ngcobo's term extension was to blame for his resignation.

"Minister Radebe has been unforgivably slow in acting on this matter. I have been prompting for action since late last year to ensure the retention of the chief justice, who was doing such important work up to this point.'' - Additional reporting by Sipho Masondo