In a most unusual public move Deputy Judge President Phineas Mojapelo published an article in last week’s Sunday Times in which he cautioned the government against a replication of its appointment of Chief Justice Sandile Ngcobo.
Judge Mojapelo highlighted the importance of consultation, particularly with opposition parties and the full membership of the Judicial Service Commission prior to the president’s decision to appoint a chief justice. While careful to describe the appointment of Judge Ngcobo as a fine choice, the article made it clear that there was dissatisfaction with the manner in which that appointment was made.
Of even greater significance was Judge Mojapelo’s warning that the same disregard for consultation this time around would constitute a major blow to the legitimacy of the next chief justice.
What makes this public initiative of a senior judge particularly interesting is the rumour that President Jacob Zuma is considering extending the term of office of Chief Justice Ngcobo, who otherwise would be required to retire this year. Viewed in this context, it appears that influential members of the judiciary are warning against such a move, especially if the move is not subjected to proper public debate before a final decision is made.
This column has previously warned against the extension option, arguing that the present chief justice, who has a most distinguished record both as a Constitutional Court judge and as a leader of the South African judiciary, should not allow himself to be appointed in circumstances that are not a part of the express constitutional scheme.
If President Zuma is to extend Ngcobo’s term, and assuming that he has the constitutional authority to do so, for how much longer would he extend the term? He could, of course, appoint Justice Ngcobo for another 12 years, which would be until the present chief justice reaches the mandatory retirement age of 70. Such a decision would doubtless be hugely controversial in that it would foreclose on many judges who otherwise merit consideration.
It would also appear less an extension of an appointment and more like a fresh permanent appointment. If he extends the judge’s term for, say, three years, would he then extend the term again? This possibility would compromise the perceived independence of the office of the chief justice, whose continuation would depend repeatedly on the pleasure of the president.
In addition, a constitutional challenge to the extension is possible on the grounds that the present legislation that affords this power to the president is an improper delegation of power – only an express Act of Parliament can extend the term of the chief justice. The implication of such a challenge to the legitimacy of the judiciary are dire: the matter would eventually land up in the Constitutional Court, where the judges would have to decide the fate of their “boss”. Moreover, such a process would take time, during which the country would be without a chief justice.
Of course, the elephant in the courtroom is the question whether government is prepared to appoint the present Ngcobo’s present deputy, Dikgang Moseneke. That Justice Moseneke has the talent, intellect, legal ability and leadership skill to be a great chief justice and hence a worthy successor to the present incumbent is surely widely accepted in the South African legal community. But there have been whisperings that he is not the favoured judicial person, without the hushed voices ever explaining the reasons why so consummate a talent is not the automatic choice.
It is possible that the rumours are all wrong, that a proper process of consulation will take place and that Justice Moseneke will be the proposed candidate. It would be truly regrettable if this were not the case, for it would then become eerily reminiscent of a decision that was made more than 50 years ago, when the National Party refused to appoint the obviously correct person, Judge Oliver Schreiner, to the position because the then government preferred someone cast in its political image.
It is precisely to prevent this subversion of the institution that the Constitution built in safeguards, including the process of consultation so eloquently emphasised by Judge Mojapelo in his article.
The appointment of a chief justice is a most important decision. Ensuring that the incumbent is loyal only to the Constitution and is perceived to be fiercely independent is vital for an institution that is increasingly being drawn into controversy involving government.
In the past few months cases dealing with the Scorpions, the question of the meaning of amnesty under the Truth and Reconciliation Commission and government’s refusal to hand over a report on the Zimbabwean elections to this newspaper are clear illustrations of the increasingly contested terrain of legal struggle.
As legal battles draw the judiciary into potential conflict with government the judicial institution will require leadership that ensures that, owing both to its performance and its composition, it retains a level of legitimacy that is central not only to its long-term operation but also to our constitutional vision. In the immediate future that means that there must be strict compliance with the principles of openness and transparency in the appointment of the new chief justice.