ANC 'perplexed' by ConCourt challenge

2011-07-29 21:11

Johannesburg - The ANC is "perplexed" that President Jacob Zuma's decision to extend the term of outgoing Chief Justice Sandile Ngcobo was challenged in court when the terms of two previous chief justices were extended using the same law, it said on Friday.

"What surprises us most is that nobody... raised any finger or any objections when the same piece of legislation was applied in the past," ANC spokesperson Jackson Mthembu said in a statement.

He referred specifically to the Justice Alliance of SA, Freedom Under Law NPC, the Centre for Applied Legal Studies (Cals) at the University of the Witwatersrand and the Council for the Advancement of the South African Constitution.

"The question we ask is that despite individuals currently heading the same organisations were present when the same law was used in the past, no court challenges were lodged. What has now changed? Why was this piece of legislation not challenged at the time?"

In a judgment handed down on Friday, the Constitutional Court found unconstitutional Section Eight (a) of the Judges Remuneration and Conditions of Employment Act, under which Zuma extended Ngcobo's term.

Mthembu said the terms of former chief justices Arthur Chaskalson and Pius Langa had been extended in terms of "the law". Only when this was done by Zuma was it challenged in court.

Deliberately misleading

However, Cals director Raylene Keighley said the ANC was "deliberately misleading" the public. She said that although the same act was used, a different section was applied.

While Zuma used Section Eight (a) of the act, Section Four was used to extend Chaskalson and Langa's terms.

Section Four did not require "presidential discretion", said Keighley.

"This is the first time that Section Eight (a) has been used by the president," the Constitutional Court said in its judgment.

Writing in his blog Constitutionally Speaking, legal expert Pierre de Vos said the argument that Chaskalson and Langa's terms were similarly extended was "utter nonsense".

"The statement from the office of the chief whip seems to confuse Section Four of the act with Section Eight (a) of the act.

"Section Four states that a judge who has never served on any other court or has served less than three years on another court, will be allowed to serve as a judge for 15 years altogether.

"Thus, Justice Chaskalson and Langa could serve for longer than 12 years as they had not served as judges in any other court before appointment to the Constitutional Court."

De Vos said Section Four dealt with judges generally and not with only the chief justice.

Section Four did not delegate the power to extend the term of office of any judge to the president.

It regulated, in an automatic way, the terms of office of Constitutional Court judges, who would serve 15 years if they had not served as judges before, regardless of whether anyone in Parliament or the executive wanted them to, he said.

No illegal action

Mthembu said the ANC "unconditionally" accepted the Constitutional Court judgment.

"Contrary to views held by individuals and some organisations that brought the challenge before the Constitutional Court, we remain convinced that the extension of Chief Justice Sandile Ngcobo's term of office by the President of the Republic of South Africa, was both constitutional and within the ambit of the law.

"It should also be said that this judgment does not imply any illegal action on the part of the President of the Republic of South Africa on the matter."

Earlier this year, Justice Minister Jeff Radebe advised Zuma that Ngcobo's seven-year term of office as a judge would end at midnight on August 14, when he would have to leave his position.

His options were to extend Ngcobo's term, or to appoint another chief justice.

Zuma wrote to Ngcobo and asked him to stay on for another five years. On June 2, Ngcobo agreed.

It was announced on Wednesday that Ngcobo had decided to withdraw his acceptance of the extension, which left the post of chief justice open from August 15, should a replacement not be found by then.

Ngcobo took the decision to "to protect the integrity of the office of the chief justice and the esteem of the judiciary as a whole".

The African Christian Democratic Party welcomed the judgment, but said it was regrettable that South Africa had lost Ngcobo as a result of the court challenge.

- SAPA