IFSDZ PAPER 25 July 2011
JUDICIAL INDEPENDENCE AND JUDGES’ APPOINTMENTS
The decision taken by South Africa’s President, Mr Jacob Zuma to extend the term of the current Chief Justice by five years, effective from the 1st of August 2011 in accordance with the provisions of section 8 (a) of the Judges Remuneration and Condition of Employment Act has raised controversy which has condensed into a legal battle centred on the constitutionality of the powers of the President as provided in the given legislation.
Pamela S. Karlan in ‘Two Concepts of Judicial Independence’ observes that ‘Lots of lawyers want to become judges; most judges want to keep their jobs; many sitting judges have aspirations for elevation to higher courts. Much of the discussion of judicial independence focuses on the threats posed by career considerations.’ This issue of extension of the Chief Justice’s tenure falls squarely into this observation. To begin with, the appointment of Chief Justice Sandile Ngcobo to his current position was not without controversy. Many thought deputy chief justice Dikgang Moseneke was going to be the natural replacement of the retiring Chief Justice Pius Langa but President Zuma justified Ngcobo’s appointment in the following words ‘The fact of the matter is that I have appointed a judge that I believe is capable,’(Sapa, 6 August 2009). Others thought that President Zuma had appointed Sandile Ngcobo prior to consulting other political parties represented in the National Assembly as required by the Constitution. The Democratic Alliance and the Inkhata Freedom Party complained in a joint letter dated the 9th August 2009, that the President had gone to the public with an announcement of his nomination of Sandile Ngcobo as Chief Justice before consulting the other Political Parties represented in the National Assembly as required by the provisions of section 174 (3) of the Constitution of South Africa which provides that ‘The President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.’ The political parties viewed President Zuma’s actions as not only unconstitutional but as a threat to judicial independence and they reminded the President in the letter dated 9th August 2009, that ‘The reason why the South African Constitution requires the President to consult the leaders of all political parties in the National Assembly is clear: The National Assembly consists of 400 public representatives, democratically elected to represent the interests of all South Africans. As the judiciary is an independent body - an independence epitomised by the position of Chief Justice - it is appropriate that those Members of Parliament be consulted before such an appointment is made. In much the same fashion, it is necessary to consult the JSC, a representative body both of the National Assembly and the justice system more broadly. Not to consult the members of these institutions would result in the appointment being made entirely at the discretion of the head of the executive; a situation which lends itself to the abuse of power, undermines the Constitutional principle that there be a separation of power between the executive and judiciary and, in practical terms, runs the risk that the Chief Justice and those candidates eligible for the position of Chief Justice might act in a manner designed to find favour with the President.’ The fear which the political parties expressed in the quotation above can be captured as fear of ‘Judicial capture’ by the Executive.
Judicial Capture
Judicial capture ordinarily occurs if the process of appointment of members of the judiciary is partisan and renders them indebted, in respect of their appointment and security of tenure to the existence of a superior force or power and yet what lies at the core of the principle of the rule of law as amplifies by the doctrine of separation of powers between the legislature, executive and the judiciary is the equality and independence of the three arms of the State. President Zuma’s actions must be checked and the fears of the parties litigating in this matter are genuine. There is an apparent threat to judicial independence and those that believe in the rule of law and separation of powers must come to the fore and legitimately defend their faith. Judicial capture is cancerous and it attacks the pillars of judicial independence that are built on the foundations of judicial integrity, transparency, accountability and fairness. Judicial capture is also anathema to democracy and as such destroys democratic institutions converting them into partisan bodies. Once key State Institutions like the judiciary become partisan, the sense of justice will be equally corrupted. This is the gravity of this matter and it is therefore imperative to keep the President’s in check.
Whilst the fight in the Constitutional Court of South Africa is about the constitutionality of the Presidential powers and the desire by the interested parties to defend the independence of the judiciary, it also inadvertently pits these interests against the personal career interests of Sandile Ngcobo. It is the ultimate dream of every lawyer to become a Chief Justice of his or her country. What raises questions in this matter is the speed at which President Zuma attempted to fast track a bill into Parliament that seeks to regularise the extension of the Chief Justice’s tenure. The question is what exactly is the President’s interest in Sandile Ngcobo that he would risk his reputation and credibility for him? The issue is not necessarily about the abilities of the Chief Justice to discharge his mandate but how his perceived close relationship with the President is likely to affect the independence of the judiciary in South Africa. It will certainly save Sandile Ngcobo’s reputation if he were to formally distance himself from the actions of the President and retire on the 31st of July 2011 or refuse to present himself for extension of his term as Chief Justice. Whilst we appreciate that not all controversy should force a judge to resign from his office, but if it is one as grave as this one which seriously threatens judicial independence then the judge must take steps that are necessary to protect his or her integrity and reputation. It is regrettable that Sandile Ngcobo’s personal interests are inadvertently contesting against national interests in judicial independence and he has a responsibility to extricate himself out of it. He must be prepared to censure his personal desires for the good of the judicial system in South Africa. This is why Pamela S. Karlan submits that ‘…much of the discussion of judicial independence focuses on the threats posed by career considerations.’ Very few people are unwilling to say no to overtures that promote and seemingly advance their careers even at the expense of selling their souls in disgrace. Inevitably, we suspect that the mere fact that the President was ready to fast track a bill to regularise the extension of the term as Chief Justice and he has not objected to that overture means that he is agreeable to the initiatives of the President. The Chief Justice must never become the ‘President’s man’ and this is what everybody fears and if the President’s powers in this regard are not kept in check, they may end up being abused. This is, however, not to suggest that President Zuma has abused his powers but the fears expressed by the litigants are genuine and something must be done to curb potential abuse of power by the President.
Our view is that Sandile Ngcobo has one option and that is to refuse the extension and protect the integrity and independence of the Judiciary.
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