Ngcobo to face Concourt peers

2011-06-18 16:59

The battle against the controversial extension of Chief Justice Sandile Ngcobo’s term of office kicks off in the Constitutional Court tomorrow.

And instead of watching from the sidelines, the chief justice himself will be in the trenches.

He may be president of the highest court in the land, but Ngcobo is cited as one of the respondents in an application to be filed in the Constitutional Court by the Justice Alliance of South Africa (Jasa).

The other respondents are ­President Jacob Zuma and Justice Minister Jeff Radebe.

According to Jasa director John Smyth, the organisation had been given permission to sue Ngcobo by ­the Supreme Court of Appeal.

The Alliance will file papers asking for ­direct access to the court, he said, because it wanted the matter heard in the highest court of the land ­before the deadline of August 16.

Chief Justice Ngcobo’s current term of office expires on August 15 after a 12-year stint as a ­Constitutional Court judge.

President Zuma announced the extension of Ngcobo’s term of ­office by five years on June 3, ­quoting section 8(a) of the Judges’ Remuneration and Conditions of Employment Act.

Scarcely two weeks later, Zuma finds himself on a legal battleground, facing the artillery of an eminent group of South African constitutional watchdogs.

This is how they lined up in the trenches this week:

» On Wednesday, the Council for the Advancement of the South African Constitution (Casac) and the Centre for Applied Legal Studies (Cals) at Wits University launched an ­application in the North Gauteng High Court to have section 8(a) of the Judges’ Remuneration and Conditions of Employment Act and ­Zuma’s decision deemed unconstitutional.

The organisations said they were seeking a hearing in theNorth Gauteng High Court on July 19.

» Freedom Under Law (FUL), headed by retired Constitutional Court judge Johann Kriegler, announced that it would apply to be a friend of the court in the case.

» The Alliance announced its intention of approaching the Constitutional Court directly for a decision on the matter.
Casac chairperson Sipho Pityana explained that his organisation believed that section 8(a) of the act is unconstitutional.

He said: “This infringes upon the principle of the separation of powers, the rule of law and the independence of the judiciary that are the very cornerstones of our constitutional architecture.”

If a chief justice is unilaterally ­appointed by the head of the executive, he said, “there will inevitably be a suspicion or perception that he or she is beholden to the person that has the power to appoint”.

But can the Constitutional Court hear a case in which its president is a respondent?

Yes, says constitutional expert Marinus Wiechers.

Nine Constitutional Court judges comprise the quorum needed to hear the Justice Alliance ­application.

Pointing out that the Constitution allowed interest groups to bring actions against executive ­decisions, Wiechers said Hugh Glenister’s recent Constitutional Court victory paved the way for the current efforts of Casac, Cals, FUL and Jasa.

Glenister’s crusade led to a Constitutional Court ruling that part of the ­legislation enabling the disbanding of the Scorpions and the subsequent launch of the Hawks was constitutionally invalid.

The court also ordered the ­relevant legislation to be sent back to Parliament, with the order of constitutional invalidity suspended for 18 months.

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