Two South African legal groups have launched a court application to challenge, on constitutional grounds, a decision by President Jacob Zuma to extend the term of the country's chief justice.
The South African constitution limits constitutional court judges to a 12-year term of office and requires an act of parliament to change this. However, last week President Zuma announced he would extend the tenure of Chief Justice Sandile Ngcobo by five years, through August 2016. Zuma relied on a section of the law that governs the remuneration of judges to do so.
Since then constitutional experts have argued the president does not have the legal right to extend the judicial terms of office, and that the law governing remuneration of judges is unconstitutional in that respect.
The president has countered that Chief Justice Ngcobo is an excellent chief justice and that the country continues to need his services.
Raylene Keightley is director at the Center for Applied Legal Studies, one of the two groups, along with the Council for the Advancement of the South African Constitution, challenging Mr. Zuma's decision. She says that in the interests of judicial independence, the president should never have the power to extend a chief justice’s term.
“So even if the president's intentions were good, or were they to be bad, and we don’t suggest that in this case, it does illustrate why the executive should not have the power to extend, and why the constitution expressly states that,” she said.
The president’s announcement has also caused a flood of speculation about the reasons for his decision. In 2008, as a regular judge of the constitutional court, Justice Ngcobo authored the single dissenting opinion in a case in which the court ruled that corruption charges against Zuma should stand. Keightley says that even though there has never been any question about the chief justice’s integrity as a judge, this kind of speculation can affect the standing of the country’s highest court.
“But it may potentially undermine the administration of justice, if these uncertainties and these kinds of discussions are allowed to prevail, and for that reason we think it is important, even where we have by all accounts a good chief justice, it is important to challenge the underlying legislation that allows this process of appointment, to ensure that the administration of justice is preserved and is in line with the constitution,” said Keightley.
There is a growing sentiment among South Africans that President Zuma’s administration too easily overlooks constitutional principles or attaches too little importance to them. Keightley says this is why it is so important for civil society organizations to use the courts or other means to ensure government decisions pass the test of the constitution.