Justice Sandile Ngcobo
“Open justice is the principle that the doors of all the courts in the nation must be open to the public and the press … It is deeply rooted in African tradition. In African societies, justice was administered in the open in the literal sense of the word. Trials were conducted under a tree; the courtroom had no walls, only a roof of leaves and branches to provide shade from the sun and shelter from the elements.”
Activist, lawyer and judge, Justice Sandile Ngcobo has vast experience in practising law in both the United States and South Africa. He was particularly passionate about defending the marginalised, as can be seen through his dedicated work with legal aid clinics. He was appointed as a judge of the Constitutional Court in 1999 and became Chief Justice of South Africa in 2009.
Early Life and Career
The journey commenced some 48 years ago when, as a 10 year-old-boy, I accompanied my father to a traditional court. This was the very first hearing that I attended and it was held under a tree. It is, therefore, befitting that, 48 years later, the journey that took me to the highest office in the judiciary, presiding in the highest court in the land, also ended under a tree … But, this time, it is the tree of justice which marks the logo of the Constitutional Court.
Sandile Ngcobo
Chief Justice of the Constitutional Court
Sandile Ngcobo was born in Durban on 1 March 1953. He graduated In 1975 from the University of Zululand with a BProc (Bachelor of Law) and completed his LLB at the University of Natal in 1985. From there he went to Harvard Law School and attained his LLM in 1986.
He worked in the Maphumulo magistrate’s office in 1977 and soon after joined K.K. Mthiyane and Company, a law firm in Durban. In 1982, he moved to the Legal Resources Centre in Durban, where he tried public-interest civil and criminal cases involving issues such as the ejection of tenants from townships; the forced removal of black communities to homelands; influx control laws; police torture and assault; wrongful detentions; labour disputes; and the eviction of black squatters.
In 1986 Ngcobo spent a year as a law clerk and research associate of the late Honourable A. Leon Higginbotham Jr, the former Chief Judge of the US Court of Appeals for the Third Circuit. Ngcobo also helped teach a seminar titled “Race Values and the American Legal Process” at the University of Pennsylvania, Harvard Law School, and Stanford Law School.
He returned to South Africa in 1988 for a short time as acting director of the Legal Aid Services Clinic of the University of Natal in Durban. In December 1989, he returned to the US as an associate attorney at Pepper, Hamilton & Scheetz in Philadelphia.
In 1992 Ngcobo returned to South Africa and practised as an advocate in Durban. His focus was labour and employment law, constitutional law, and general practice. In 1994 he was a presiding officer of the Independent Election Commission’s Electoral Tribunal. He was also appointed to serve on the amnesty committee of the Truth and Reconciliation Commission (TRC) in February 1998.
Ngcobo served as a judge of the Supreme Court, Cape of Good Hope Provincial Division In 1996 and the following year he was appointed as a judge of the Labour Appeal Court. In 1999, Ngcobo was appointed the acting Judge President of the Labour Court and Labour Appeal Courts.
Judges in South Africa occupy, I believe, a very unique role by virtue of our nation’s bloodied and divided past. I have ever been aware, as I engage with complex constitutional questions, that I must undertake my task with reverence for the constitutional directive to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.
Sandile Ngcobo
Chief Justice of the Constitutional Court
Appointment to the Constitutional Court
I have been involved with virtually every court that deals with the majority of people in South Africa. Having regard to my background … and knowledge of customary law and … black culture in general, I would think that I will bring a very unique perspective in the debates which take place in that [Constitutional] Court.
Sandile Ngcobo
Chief Justice of the Constitutional Court
Ngcobo was appointed by President Nelson Mandela as a justice of the Constitutional Court from 1999 to 2009. President Jacob Zuma appointed him as Chief Justice in 2009. He served for two years until his retirement in 2011. Ngcobo was known to have a great sense of humour by his peers at the Court. In chambers he could be heard walking down the passage humming or whistling his favourite Christmas carols – even in July.
I was privileged enough to have been afforded the opportunity to apply the Constitution during my tenure as a member of the Constitutional Court and to participate in constructing our foundational jurisprudence on constitutional law. It was both a formidable and complex task. It was complex partly because when I joined the Court, the Constitution was about three years old and partly because there was little or no precedent to guide the process. We were virtually writing on a clean slate. We were constructing the foundational jurisprudence that would guide the future development of our constitutional law … And that would withstand the test of time.
Sandile Ngcobo
Chief Justice of the Constitutional Court
Judgments of Interest
Doctors for Life International v Speaker of the National Assembly and Others (2006)
In this case, the Court sought to understand the nature and scope of Parliament’s obligation to facilitate public involvement in the legislative process.
Doctors for Life, which has conservative views on the Choice on Termination of Pregnancy Act 92 of 1996, approached the Constitutional Court with a novel challenge to the proposed law, based on participatory democracy.
The tension at the heart of the matter was between representative democracy and participatory democracy. The word participatory is not used in the Constitution, but section 1(d) refers to a “multi-party system of democratic government”. The meaning of that is what became central to the judgment.
In a judgment written by then Justice Ngcobo, the Constitutional Court emphasised Parliament’s duty to facilitate public involvement and that that will often require Parliament and the provincial legislatures to provide citizens with a meaningful right to be heard in the making of the laws that govern them.
The Constitutional Assembly, in framing our Constitution, was not content only with the right to vote as an expression of the right to political participation. It opted for a more expansive role of the public in the conduct of public affairs by placing a higher value on public participation in the law-making process.
Justice Sandile Ngcobo
the Doctors for Life judgment, 17 August 2007
Albutt v Centre for the Study of Violence and Reconciliation and Others (2010)
The President wished to issue pardons to people who had missed the TRC window. The families of the victims of those who were due to be pardoned found that this process did not adequately include the families in the process.
In a judgment written by Chief Justice Ngcobo, the Court found that the non-inclusion of victims and their families in the pardoning process was unconstitutional, and ordered that they must be included. Chief Justice Ngcobo held that, given South Africa’s history, victim participation under the principles of the TRC was the only rational means to contribute to national reconciliation and national unity – the President’s stated objective with this pardoning process.
Excluding victims from participation keeps victims and their dependants ignorant about what happened to their loved ones; it leaves their yearning for the truth effectively unassuaged, and perpetuates their legitimate sense of resentment and grief. These results are not conducive to nation-building and national reconciliation.
Chief Justice Sandile Ngcobo
the Albutt judgment, 23 February 2010
Life after the Constitutional Court
In August 2013, Ngcobo was appointed by then President Zuma to chair the Presidential Remuneration Review Commission. In that same year he was also appointed to chair the Competition Commission’s inquiry into the private healthcare sector. He simultaneously acted as an arbitrator in private disputes and taught Comparative Constitutional Law at various universities in the United States.
Family and Personal Life
Ngcobo is married to Zandile and they have three children: a daughter, Nokwanda, and two sons, Ayanda and Manqoba.
In the Words of Others
Drawing from what he learned as a child observing traditional courts, Judge made the court system more human for the people who were there. During my time working with him, Judge radiated and instilled in us a connectedness and commitment to the cases that came before the Court. He is a hard worker, and expected the same work ethic from all of us, his law clerks. He took time to engage us in chambers and through memos, thereby developing our minds as legal thinkers.
Nyoko Muvangua
former law clerk for Justice Ngcobo
Sandile was extremely methodical. He brought five different coloured pens with him to Court hearings, and would organise his questions and the answers in such a way that he used different colours for different aspects of the case … His voice was the softest of all of our voices, sometimes difficult for counsel and his colleagues to hear. It was as if he were concentrating utterly on getting the words exactly right and not using up any emotion for inflection or emphasis.
Albie Sachs
former Justice of the Constitutional Court
It is quite a humbling experience indeed, and possibly even a daunting task to step into the proverbial shoes of a man who was my Judge President when I first acted in the Labour Appeal Court and who later rose through the ranks to become Chief Justice – my Chief Justice – for almost two years, a man with a razor-sharp intellect and a hard taskmaster who performed his role and function with total dedication … a man with whom I have shared, over the years, the passion, in practical terms, for the education and training of the magistracy and the upper judiciary for access to justice, court efficiency, transformation and the independence of the judiciary.
Mogoeng Mogoeng
Chief Justice of the Constitutional Court
He has always been impeccable and objective in adjudicating the cases brought before him. He showed no fear, favour or prejudice, even when he was for a minority view in the sitting of the Constitutional Court or if he was adjudicating in any matter regardless of the status of the litigants. For this reason, I could safely say that the rule of law continued to reign supreme in his tenure as Chief Justice and that the Constitution continued to be the supreme law of the land in part owing to his very able leadership and stewardship to the Constitutional Court.
Jeff Radebe
Former Minister of Justice and Constitutional Development
Justice Ngcobo made an enormously powerful contribution to the advancement of justice. A brilliant and courageous judge, he was and is guided in all things by the constitutional values of equality, freedom and human dignity. He cares deeply about the nature of South Africa’s constitutional democracy and the role of the Constitutional Court in interpreting and defending its principles. Justice Ngcobo’s sharp intellect, quirky wit and deep commitment to the advancement of justice were present in all that he did, wrote and said.
Elizabeth Brundige
former law clerk to Justice Ngcobo
