Vaulting ambition o'erleaps itself
The decision of Chief Justice Sandile Ngcobo to withdraw his acceptance of the presidential invitation to extend his term of office by five years beyond his normal retirement date was the right thing to do. This is so, even if his reversal of stance may have been avoided completely had the essential illegality of the invitation been recognized at an earlier stage by both inviter and invitee. The unanimous decision of the rest of the justices of the Constitutional Court to strike down the law in terms of which the president purported to extend the invitation confirms the correctness of the withdrawal.The probity and integrity of the Bench is preserved and protected by the implicit acknowledgement that the initial acceptance was an error. The independence of the courts is enhanced by owning up to the error. The doctrine of the separation of powers is accorded due respect even though it may initially have been overlooked. Adherence to the requirements of the rule of law is much more important to the prosperity of the country than the identity of the incumbent of the office of chief justice for a mere five years. The Chief Justice deserves congratulations for being big enough to correct his initial error in so selfless and transparent a fashion. Hopefully his talents will not be lost to an early, idle retirement - the Law Reform Commission, for example, is short-handed at present.
The government's acceptance that the provision used is indeed invalid is also welcome, as this too suggests that constitutionalism is alive and well in the land. It is of overriding importance that the supremacy of the Constitution and the rule of law have been affirmed by the manner in which the whole question of the succession to the office of chief justice has panned out thus far, however unfortunate it may be that the services of a proper judge and a good leader have been lost in the process. The tenets of constitutionalism outweigh these passing considerations.
Cynical observers (mostly lawyerly) will say that Sandile Ngcobo earned his chief justice posting from his lone dissent in the search and seizure criminal case against Jacob Zuma. They will say the presidential request that he consider staying on for five years after his normal retirement date was earned in similar fashion for perceptions (rightly or wrongly) of executive mindedness in his judicial work and undue closeness to the ANC.
The cynics will point to the vulnerability of a president whose ascent to his position of power occurred in the face of 783 counts of corruption and racketeering contentiously dropped on the eve of the elections of 2009. They will highlight the oft trumpeted requirement of the national democratic revolution that safe party hands be placed on all the levers of power in society. A requirement repeated by the president himself in his 8 January statement this year. They will tut tut about the repeated overlooking of the deputy chief justice, who has no truck with the ANC's national democratic revolution, for promotion and will point to the short interval between the appointment and normal retirement date of Chief Justice Ngcobo.
They will trot out the identity of the top personnel in the justice and security cluster in support of their arguments; drawing attention to the pending review of the decision of Molokoti Mpshe not to proceed with the prosecution of the president, the application to compel the appointment of a commission of inquiry into the arms deals and the attack on the fitness for office of Menzi Simelane, who succeeded Vusi Pikoli as National Director of Public Prosecutions at the behest of the president. All of these cases will finally play out in the Constitutional Court and will directly affect the political fortune of the president. The long presidential silence regarding the irregularities uncovered by the Public Protector involving SAPS leases, a cabinet minister and the national commissioner of police will continue to raise cynical eyebrows.
Some especially tart cynics will point to the cordiality of the relationship between the president and the chief justice; to the latter's characterising the clashes between the branches of government as a friendly "dialogue" rather than the sharp cutting edge of the checks and balances on the exercise of power which is of the essence of constitutionalism.
The insistence of the ANC Chief Whip in Parliament that the president did nothing wrong in inviting the chief justice to stay on another five years will fuel the arguments of the cynics, who will point to the striking down of the law under which the president purported to act as proof of the legal and moral bankruptcy of the ANC.
Of particular interest to the cynics will be the identity of the legal advisors, and the nature of the advice given, that prompted the president to embark upon the unhappy course of action that led to the invitation being extended to the chief justice. Surely, they will cry, the invalidity of the section ought to have been apparent. Sardonically, they will highlight the part of the unanimous judgment of the Constitutional Court which quotes a decision of the chief justice himself in which the principle that a power given to one branch of government in the Constitution can not be delegated to another in the manner in which parliament purported to do so in this case. This they will pout, ought to have alerted all concerned to the inadvisability of the course adopted; the president's lust for power and his desire to preserve a status quo that he perceives to be favourable to his agenda have been thwarted by the way in which the Court and the Chief Justice have responded.
That the presidency is in need of better legal advice in many respects is becoming increasingly apparent.
Collins Chabane, a minister in the presidency, sounded particularly unconvincing when he tried to argue that the law was valid until it was declared invalid. He should revisit section 2 of the Constitution which reads that: "The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled."
The civil society organisations which invoked this provision are also deserving of the gratitude of the public. Their intervention has upheld the values of the Constitution, without which our nascent democratic order is surely doomed. The dire warning directed to the Chief Justice by IFAISA immediately his initial acceptance was announced in June has proved to be unnecessary. In part it read:
"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."
These considerations are what make the outcome of the matter significant to the general public. As with Shakespeare's Macbeth, it is the vaulting ambition of the president that has o'erleapt itself in this instance. He needs good legal advice on what to do next. Compliance with the Constitution ought to be his paramount consideration.
Paul Hoffman SC
1st August 2011
