The courts will have to decide whether a section of the Judges’ Remuneration and Conditions of Employment Act, used by President Jacob Zuma to reappoint Chief Justice Sandile Ngcobo, is constitutional.
Constitutional law expert Pierre de Vos said on Monday that Zuma might have a case to answer.
De Vos said groups that questioned the process Zuma followed in extending Justice Ngcobo’s term “have a good argument”.
“The constitution gives that power to Parliament. And the power given to Parliament cannot be delegated to the president,” he said.
De Vos said the matter also affected the separation of powers between the executive and the judiciary and raised questions about the independence of the judiciary.
This followed an announcement at the weekend by the University of the Witwatersrand-based Centre for Applied Legal Studies that it would challenge Zuma’s extension of Justice Ngcobo’s service as the law on which the president had based this extension was unconstitutional.
The centre believes the section violates the constitutional guarantee of judicial independence and the section of the constitution dealing with the appointment of judges.
Business Day quoted the centre’s director, Raylene Keightley, as saying it had written to Zuma and Justice Minister Jeff Radebe last month, telling Zuma that if he intended to use section 8 to extend Justice Ngcobo’s term, the centre “intends to challenge the section in court and ask the courts to declare it unconstitutional”.
Keightley was quoted as saying “the centre did not in any way impugn the integrity or ability of Justice Ngcobo. However, an important question of principle is at stake”.
The centre felt the ability of the president, with “unfettered discretion”, to grant to the chief justice such a significant benefit was inconsistent with judicial independence.
The section does not limit the number of times the president may reappoint a chief justice. Nor does it set a time limit for how long a reappointment can last, except that a judge must retire by the age of 75.
Section 176 (1) of the constitution states that a Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an act of Parliament extends his or her term of office.
The IFP also weighed in, with MP Mario Oriani-Ambrosini saying that “if Zuma has extended the term of office of the chief justice beyond the 12-year limit set out in the constitution, he would have acted unconstitutionally, as only an act of Parliament may effect such an extension”.
Zuma said he had asked Justice Ngcobo to stay on for another five years, until August, 2016. Zuma said Justice Ngcobo would have been eligible for discharge from active service on August 15 this year, when he would have held office as a judge and Constitutional Court judge for 15 years and three months. – Political Bureau