Outgoing Ngcobo may be flush over toilet privacy, but jury still out over a successor

By Carien Du Plessis 15 August 2011

Former Chief Justice Sandile Ngcobo is looking forward to a bit of me-time, having said his farewells after a mere 18 months in the top judicial job. Amid the uncertainty over who will succeed him and when, CARIEN DU PLESSIS discovers that reports about calls for a female successor have been greatly exaggerated.

Relief from the pressures of heading the judiciary is one of the things a chief justice could look forward to in retirement. On a more practical level, going to the john in privacy is another. At least this is what former Chief Justice Sandile Ngcobo quipped about to colleagues last week, as he wrapped up his work at the Constitutional Court.

Because in the justice system’s supreme monument to the “new” South Africa equality extends to the loos, and unlike in most other courts, where judges have their private ablution facilities, the ConCourt judges have to share theirs with the common folk – and with the other sex. It’s not exactly a very comfortable situation.

After hastily-arranged functions to bid farewell to Judge Ngcobo (his retirement only became a fact two weeks ago) at the end of last week, President Jacob Zuma on Sunday, technically Judge Ngcobo’s last day in office, added his voice to those wishing him a “restful retirement”.

In the statement Zuma hinted it was farewell, but not goodbye. “We trust as a patriot who wants only the best for his country, he would not be averse to undertaking national duty if required to do so by the nation,” Zuma said, reflecting Judge Ngcobo’s undertaking to still be available for “national service”.

Retired judges usually continue to do academic, consultancy and sometimes advocacy work, but it is likely that Judge Ngcobo could stay on after retirement to continue with his work on the establishment of the chief justice’s office as an independent unit from the department of justice.

The work was initiated under his predecessor, retired Judge Pius Langa, but Judge Ngcobo was responsible for the bulk of the work and has indicated that he was available until the end of the year to help with it.
A process is underway to establish a commission or a committee (the jury is still out on that one – a commission is appointed by the president, so issues of independence are at stake, but it’s easier to get funding for a commission than a committee) to promote access to justice for all, including the poor.

Judge Ngcobo could be called out of retirement to serve on this body (and draw a salary on top of his pension – in effect double his current earnings – if he wishes).

The need for his successor coincides with Women’s Month, and this has meant everyone and their female dog had been calling for a woman to fill the post.

Or at least that’s how it feels. In reality so far only the president of the ANC Women’s League, Angie Motshekga, has made the call – at Women’s Day celebrations on 9 August. Her call followed rumours from the bench 10 days ago that Justice Sisi Khampepe (her of the commission that okayed the Scorpions before their demise) was close to being appointed to the top job before Zuma decided to postpone the decision, ostensibly to consult the Judicial Service Commission and political parties in Parliament some more.

Then SABC reported over the weekend that Deputy Chief Justice Dikgang Moseneke at a conference for the International Association of Women Judges in Potchefstroom said voices calling for female judicial leaders should be heeded. Retired ConCourt judge Yvonne Mokgoro, apparently supported this by saying: “It is quite heartening that people are calling for the appointment of a woman as a Chief Justice.

“It’s actually quite pleasing to hear that, and if I was the president, I would certainly listen to people who call for judicial leadership at that level for women” she added.
But on Sunday she told Daily Maverick she did not mean a woman must succeed Ngcobo, but was talking about women judges in general. Justice Moseneke also said nothing of the sort, she said. “It would be improper at this level to enter the debate,” she said.

So much for the women’s lobby then.

The problems started when Zuma used a provision in the law to extend Judge Ngcobo’s term, but this was ruled unconstitutional just a day after Judge Ngcobo surprised everyone by saying he would not be available for reappointment.

Now even Judicial Service Commission spokesman advocate Dumisa Ntsebeza admits – with some wry humour – to not knowing “what the fuck is going on”.

Zuma’s announcement that he would delay the appointment of a Chief Justice until the end of the month came “like a bolt from the blue”, said Ntsebeza, who was present at the meeting where Zuma announced it to the media on 5 August, a week after Ngcobo’s bombshell.

The JSC subsequently cancelled its meeting scheduled for the past weekend and no date for future consultations has yet been set.

“Zuma said he wants a more meaningful consultation with the JSC, which means he’s not just going to tell us, but engage us. Though how he’s going to do it is anybody’s guess. Is he going to communicate one name, ask us to make nominations, or say to us these are the people I’m going to select my Chief Justice from – that we don’t know,” Ntsebeza said.

The rumour mill in the ConCourt was strangely quiet last week.

At a meeting to discuss the way forward on the establishment of the office of the Chief Justice, a relaxed Judge Ngcobo apparently gave no hint as to who his successor could be, but he’s said to have sounded confident that Zuma would appoint someone by the end of August.

Strong female candidates for the job, other than Justice Khampepe, are said to be Supreme Court of Appeal Judges Mandisa Maya, Belinda van Heerden and Leona Theron, while on the male side Justice Zak Yacoob is among the most senior judges on the Constitutional Court bench.

Justice Mogoeng Mogoeng has also been mentioned (although the religious arbitrator joked to a colleague that the only person he’d heard from about this was “my Lord”), together with SCA Judge President Lex Mpati and North and South Gauteng Judge President Bernard Ngoepe, Justice Kenneth Mthiyane and Labour Court Judge President Dunstan Mlambo.

Meanwhile Justice Moseneke is set to act as chief justice, and he should do so with gusto, because it is rumoured he might be overlooked for a permanent appointment to this position – again. That is, unless Zuma appoints him in the job to save face as Justice Moseneke has less than three years to go on the bench. You be the judge. DM

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Photo: Reuters


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