Open letter to the Chief Justice of South Africa, Sandile Ngcobo

Dear Chief Justice,

RE: The extension of your appointment.

It is difficult to write a letter of this nature on an open basis. The extra-ordinary circumstances that prompt its provenance render it necessary to do so. Because the letter is an open one, it has to contain material that is well known to you, but perhaps less well known to others, less learned in the law, who need to know. Please forgive the traversing of matter intended for the consumption of others who may be interested to read this letter.

It is also painful to have to write to you on this topic, because you are held in high regard in your professional life as a person whom the legal fraternity rightly calls "a proper judge"; because you have served on and led the Bench with such distinction; because the Institute for Accountability in Southern Africa welcomed your appointment as Chief Justice with unreserved acclaim, and, not least, because you have promoted public confidence in our judiciary. In the words of the Minister of Justice, you "do a bloody good job".

A press release from the presidency claims that you have accepted appointment as Chief Justice for a further five years at the invitation of the President. You do not appear to have repudiated the assertion that you have consented to this extension of your term of office.

According to the provisions of section 176 of the Constitution you hold office in the Constitutional Court for a non-renewable term of 12 years. In your case, this term expires in August. This non-renewable term may, as an exception, be extended "where an Act of Parliament extends the term of office of a Constitutional Court judge."

You are and remain a Constitutional Court judge despite your recent elevation to the rank of Chief Justice. The Constitution itself makes this pellucid in the words: "The Constitutional Court consists of the Chief Justice, the Deputy Chief Justice and nine other judges."

It is not necessary to remind you that our courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. No person or organ of state, (and this clearly includes the President), may interfere with the functioning of the courts. On the contrary, organs of state must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

Our system of multi-party democracy under the rule of law envisages a separation of powers between the three main arms of government being: the executive, the legislature and the judiciary. This has been upheld and recognised universally by our courts.

The system implies a series of checks and balances on the exercise of power, the purpose of which is to ensure that no one arm of government dominates or over-powers the others. It is of the essence of constitutionalism that the separation of powers be upheld and preserved.

Without it, hegemonic control of the levers of power in society follows and the dialogue between the judiciary, executive and legislature, that you are fond of describing in your valuable public discourse, ends in a one party state in which all power resides in the party alone.

Such states usually fail. This is obviously not a fate that the founders of the new South Africa had in mind when they agreed that in our post-liberation new order the foundational values are openness, accountability and responsiveness to the needs of ordinary people. Human dignity, the achievement of equality and the various freedoms guaranteed in our Bill of Rights are all unattainable in a hegemonic society.

It is so that the legislature has passed an Act that provides that:

"A Chief Justice who becomes eligible for discharge from active service ... may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active service as Chief Justice of South Africa for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years."

This provision, by its very terms, is inconsistent with the Constitution which creates a dispensation for extending the term of appointment of Constitutional Court judges that reads: "...except where an Act of Parliament extends the term of office of a Constitutional Court judge."

Legislation which is inconsistent with the Constitution is invalid and falls to be struck down as such by the Constitutional Court.

The inconsistency is not a trivial one. A power of extension of your term of office which the Constitution gives to Parliament has purportedly been given away by Parliament to the President, who heads the Executive branch of government. The old Latin maxim "delegatus non potest delegare" surely applies.

The Constitution does not afford the President any role whatsoever in the extension of your term of office. It explicitly requires that Parliament pass an Act. As you observed in your judgment in the Executive Council case in 2000, it is improper for legislatures to delegate constitutionally conferred powers to the executive branch of government.

This is exactly what has purportedly been done in the legislation quoted above; your own judgment can be used in your own court to show that this does not pass constitutional muster.

The requirement that an Act is passed, accords with the notion of checks and balances on the exercise of power. The power to appoint a new Chief Justice is that of the President. He exercises it after consulting the JSC and leaders of political parties represented in the National Assembly. The extension of your term of office has not passed through this process; the President simply presented it as a fait accompli to the opposition parties in the National Assembly, according to a press release by the parliamentary leader of the opposition.

The thinking which manifestly informed the need to have an Act of Parliament for an extension of office is that this is a way of checking and balancing the President's role in your original appointment as Chief Justice. The extension of the appointment is exclusively in the hands of Parliament, or at least, those of the majority of the members of Parliament, who vote in favour of an Act that extends your term of office.

The processes and debate that precede the passing of any Act of Parliament are salutary and need to be punctiliously observed, given the commitment of our constitutional order to participatory democracy, the separation of powers, the supremacy of the Constitution and to the independence of our judiciary.

In all these circumstances, and if it is true that you have accepted, without qualification, the extension of your term of office by five years, please reconsider your position and tell the President, and the nation, that your consent is subject to proper compliance with the constitutional requirement that an Act of Parliament be passed.

If the necessary Act is so passed, the rule of law will have been upheld and your extended service to your country and your role in the protection of its Constitution will be able to continue without controversial litigation and without any blemish on your impartiality and objectivity.

Due process is an essential aspect of the rule of law. It simply won't do to ignore the constitutional requirement that an Act of Parliament is needed to extend your term of office as our Chief Justice; indeed, to do so would be unaccountable conduct. This would also not be like you, as it is simply not just.

Yours faithfully,

Paul Hoffman

Director

Institute for Accountability in Southern Africa

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