A New Chief Justice for South Africa

Today, President Zuma announced that Justice Sandile Ngcobo will become the new Chief Justice of South Africa. The appointment is potentially significant in both: (1) what it says about Zuma’s commitment to judicial independence; and (2) what it signals about the likely direction of the Constitutional Court’s jurisprudence, at least over the next two years, prior to Ngcobo’s likely retirement (under the current Constitutional requirements).

Zuma initially considered appointing to the post Cape Judge President, John Hlophe, but this potential appointment was criticized on the grounds that it threatened the independence of the judiciary. (A complaint has been lodged with the South African Judicial Services Commission against Hlophe for an approach he allegedly made to the Constitutional Court in relation to previous corruption proceedings against the President–see http://www.capetimes.co.za/?fSectionId=&fArticleId=nw20090807160426356C574047.) The decision to appoint Ngcobo over Hlophe is, therefore, a hopeful sign of Zuma’s willingness to respect the independence of the judiciary. At the same time, there is some suggestion that the President was influenced in his decision to appoint Ngcobo, over Justice Dikgang Moseneke, the current Deputy Chief Justice, by recent comments by Moseneke criticizing Zuma for an earlier attack on the independence of the judiciary – see http://www.capetimes.co.za/?fSectionId=&fArticleId=vn20090807032911202C832679). If that is right (a suggestion the President strongly denies), the near-term future of judicial independence in South Africa is still far from completely assured.

Ngcobo’s appointment also signals that, while continuing its recent track-record of protecting individual rights, the South African Constitutional Court is likely over the next two years to take a somewhat more pro-majoritarian approach in some areas under the South African Bill of Rights. (For a great article on certain important instances of counter-majoritarian decision-making by the Constitutional Court, see Theunis Roux, “Principle and Pragmatism on the Constitutional Court of South Africa”, 7 International Journal of Constitutional Law 106 (2009).)

When it comes to the rights of prisoners, while a majority of the Court in Minister of Home Affairs v NICRO, CCT 03/04, for example, struck-down a law disenfranchising prisoners, Ngcobo would have upheld the law except as applied to those in detention pending trial. In various cases involving claims to sexual freedom, Ngcobo has also taken a somewhat conservative, pro-majoritarian position in writing for the Court in dismissing a Constitutional challenge to prostitution laws (Jordan v The State, CCT 31/01); and in adopting a narrow view of the scope of freedom of expression as applied to nude dancing (Phillips and Another v The Director of Public Prosecutions, CCT 20/02).

In other contexts, in dissent Ngcobo has advocated even stronger protection of individual rights than the majority, but generally in contexts where the right in question has some real support among black South Africans (see e.g. Prince v. The President of the Law Society, CCT 26/00, involving the right to sacramental use of cannabis).

Those who recall President Nixon’s attack on the U.S. Supreme Court during the 1968 Presidential elections, and his subsequent appointment of Warren Burger as Chief Justice, might see some parallels in South Africa today. From this perspective, there may also be reason to hope that Zuma’s anti-court rhetoric is gradually taking a form that from an American standpoint is both far more familiar and less threatening than previously.

-RD