On Wednesday, a legal and political bombshell hit us all. Chief Justice Sandile Ngcobo, we are told by the Minister of Justice, Jeff Radebe, withdrew his acceptance of the offer to stay on as Chief Justice of South Africa's Constitutional Court. The president has accepted Ngcobo's change of heart. Why did he do so? What now? And what are the implications for all us, and the Constitutional Court in particular?
First, it is surprising that Ngcobo is receiving mostly uncritical praise for his decision. While it is a good thing to not criticise judges willy-nilly, and the judiciary more generally, when it is justified to pass criticism we ought to do so. Ngcobo has been aware for months already that there is compelling doubt about the constitutionality of the statutory clause in terms of which the President had made him the offer to stay on.
He should have either gently alerted the Presidency to these concerns back then or declined the offer. The timing of this withdrawal is curious. One cannot but help speculate that the embarrassing prospect of one's constitutional peers handing down a judgment that inadvertently shows you to have acted self-interestedly, rather than with sound constitutional sense, motivated this last minute withdrawal.
Second, a couple of remarks made by Mac Maharaj around this issue, on behalf of President Zuma, are deeply disturbing. Maharaj has reportedly stated that there is now no need for the litigation before the constitutional court to continue, nor for the proposed amendments to the Judges' Remuneration Act to be considered by Parliament.
This shows a shocking disregard for constitutional processes. The point of the litigation was never to test Chief Justice Ngcobo's fitness for office. It is therefore utterly irrelevant whether or not the Chief Justice has withdrawn his decision to stay on as Chief Justice. The point of the case before the court is to test the constitutional validity of section 8(a) of the Judges' Remuneration Act. The judgment must and will therefore still be handed down.
It is important for the highest court on constitutional matters to pronounce on the constitutionality of the clause in question. Ngcobo's decision to withdraw is beside the point. Within this context, Maharaj's remarks betray a worrying misunderstanding of the point of constitutional litigation.