The Court ruling on one of its own – the Chief Justice
Justice Alliance of South Africa v President of the Republic of South Africa and Others (2011)
Can the President extend the term of the Chief Justice and not the other justices?
Background
At midnight on 14 August 2011, Chief Justice Sandile Ngcobo’s term on the Constitutional Court bench was set to expire. On that date, the Chief Justice would have completed more than 15 years of active judicial service – the maximum number of years that a Constitutional Court judge can serve.
On 11 April 2011, then President Zuma sent a letter to the Chief Justice requesting to extend his term for an additional period of five years in terms of section 8(a) of the Judges’ Remuneration and Conditions of Employment Act 47 of 2011. This Act states that a Chief Justice who becomes eligible for discharge from active service may, at the request of the President, continue to perform active service as Chief Justice of South Africa for a period determined by the President.
The Chief Justice accepted this request. On 3 June 2011, Zuma announced to political parties and the Judicial Services Commission (JSC) that he had extended Ngcobo’s term.
Path to the Constitutional Court
Twelve days after President’s Zuma’s announcement, the Wits Centre for Applied Legal Studies, Freedom Under Law, the Justice Alliance of South Africa, and the Council for the Advancement of the South African Constitution took President Zuma, the Minister of Justice, Jeff Radebe, and the Department of Justice to the Constitutional Court.
The Court found that it was in the interests of justice for it to give a final determination on all issues raised. The parties wanted the matter to be decided as quickly as possible, so as to enable the executive and Parliament to determine an appropriate course of action, if any change indeed proved necessary before 14 August 2011 – the date on which the Chief Justice’s term expired. The Court accepted that the matter was urgent and heard the matter on 18 July 2011. Judgment was handed down on 29 July 2011.
This case was unprecedented as it cited one of the Court’s own, Chief Justice Ngcobo, as a party. The Chief Justice did not take part in the case except to say that he abides by the decision of the Constitutional Court.
Section 176(1) of the Constitution was inserted in the Constitution in 2001 to provide for the extension of the term of office of then Chief Justice Arthur Chaskalson. Many constitutional lawyers argued against the amendment, saying that despite Chaskalson’s brilliant tenure as Chief Justice, the terms of office of Constitutional Court judges should be fixed so as to prevent any perception of bias or a lack of independence.
Some of the Arguments
Justice Alliance of South Africa
The applicants argued that the Judges’ Remuneration and Conditions of Employment Act that empowered the President to extend only the Chief Justice’s term of office is unconstitutional for a number of reasons:
- Section 176(1) of the Constitution empowers an ‘Act of Parliament’ to extend the term of office of the Chief Justice. Therefore, to the extent that section 8(a) of the Act gives this power to the President, it is an unlawful delegation of a legislative power.
- The Act is inconsistent with the Constitution because it allows the terms of office of the Chief Justice alone to be extended without extending the terms of office of the other Constitutional Court judges.
- The power to extend the term of a Constitutional Court judge goes to the core of judicial independence and the separation of powers. A non-renewable term of office is a prime feature of judicial independence. Non-renewability fosters public confidence in the institution of the judiciary as a whole since its members function with neither threat that their terms will not be renewed nor any inducement to seek to secure renewal.
- The extension of a term of office, particularly one conferred by the Executive or by Parliament, may be seen as favouritism and an interference in the judiciary by the Executive of Parliament contrary to the principle of separation of powers and judicial independence. The JSC, as an independent body, plays a significant role in the appointment of judges in order to prevent the Executive from interfering with the judiciary.
- Therefore, the President should have consulted with the JSC when deciding to extend the Chief Justice’s term, especially since the JSC plays a role in the appointment of the Chief Justice.
The government made things worse by refusing to admit that the section on which the President had relied might be constitutionally problematic and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of section 8(a) were motivated by a hatred for the Chief Justice … the Justice Minister placed Chief Justice Ngcobo in an almost impossible position … and threatened to destroy the integrity of a judge who has served South Africa with distinction.
Pierre de Vos, constitutional law expert
27 July 2011
The President of South Africa and the Minister for Justice and Constitutional Development
The President and the Minister argued that:
- Parliament had not delegated its legislative power but had in fact extended the term of office of the Chief Justice by authorising the President to do so.
- Section 176(1) did permit an extension of the term of a category of Constitutional Court judge like the Chief Justice.
Prior to the handing down of the judgment by the Court, Chief Justice Ngcobo withdrew his acceptance of the President’s extension of his term of office, and indicated that he would step down on 14 August 2011 as had been expected prior to the President’s request to extend his term.
What did the Constitutional Court decide?
The Constitutional Court was unanimous in its finding of unconstitutionality of section 8(a) of the Judges Remuneration Act, and therefore the extension of the Chief Justice’s term by the President was of no force and effect. The judgment stated that a non-renewable term of office is an important feature of these constitutional imperatives, and that the wording of section 176(1) does not permit the singling out of any one of the Constitutional Court judges for the extension of their terms.
It held that section 176(1) must be interpreted against the background of the constitutional imperatives of the rule of law, separation of powers, and the independence of the judiciary.
The Court held first that section 8(a) of the Act permitted the President to extend the term of office of the Chief Justice, and by this surrendered the power of Parliament which goes against section 176(1), and therefore amounted to an unlawful delegation of legislative power.
Judicial independence is crucial to the courts for the fulfilment of their constitutional role. It is foundational to and indispensable for the discharge of the judicial function in a constitutional democracy based on the rule of law. What is vital to judicial independence is that ‘the Judiciary should enforce the law impartially and that it should function independently of the Legislature and the Executive’.
The Constitutional Court
from the Justice Alliance judgment, 29 July 2011
Impact and Significance
On August 15, there will be a new Chief Justice in South Africa.
Jeff Radebe
then Minister of Justice, 27 July 2011
According to section 173(4) of the Constitution, the Chief Justice and the deputy Chief Justice are to be appointed by the President in consultation with the JSC and leaders of political parties represented in the National Assembly.
On 20 August 2011, President Zuma nominated Justice Mogoeng Mogoeng for the position of chief justice. Various legal bodies were invited to make submissions to the JSC in respect of Justice Mogoeng’s nomination. The JSC then interviewed Justice Mogoeng over a couple of days starting on 3 September 2011 to assess his suitability to be Chief Justice. Following the intense JSC interviews, Justice Mogoeng was appointed Chief Justice of South Africa by President Zuma on 8 September 2011.
