The judiciary is in a safe pair of hands

http://www.businessday.co.za/articles/Content.aspx?id=82903

NOW it’s official. Justice Sandile Ngcobo is SA’s new chief justice, in the wake of Justice Pius Langa’s retirement. The question on everyone’s lips is whether Ngcobo is a mere compromise candidate, an alternative to the disastrous possibility of a chief justice John Hlophe on the one hand, and the seemingly too-independent Justice Dikgang Moseneke on the other? Yet, anyone familiar with Ngcobo’s career as an academic, practising lawyer and judge knows all too well it would be lazy and hasty to simply label him “compromise candidate”. He is much more than that, as his achievements attest.

Ngcobo has a deep commitment to participatory democracy. Those who were hoping that he would show an aversion to checking the powers of Parliament and the executive are in for a surprise. In 2006, for example, he handed down a brave judgment in the case of Doctors for Life International versus Speaker of the National Assembly and Others, striking down four health-related acts of Parliament because Parliament had failed to adequately consult the public in its law-making processes. This judgment cemented Ngcobo’s commitment to constitutional supremacy and there is little reason to imagine that the anachronistic doctrine of parliamentary sovereignty might suddenly rear its ugly head again.

This commitment to ensuring the substantive rights of the public are upheld has also been affirmed in private cases. Ngcobo showed commitment to eliminating discriminatory practices in the workplace by insisting in 2000 that South African Airways may not refuse to hire an HIV- positive candidate solely on the grounds that his status may offend passengers. Here, Ngcobo articulated the importance of the application of equality in all spheres of social and commercial life, not just in regulating behaviour between the state and citizens. It is therefore fair to characterise Ngcobo’s jurisprudential contribution as socially progressive and founded in a commitment to seeing state and private action complying with the letter and spirit of the values enshrined in the constitution.

This is not to say, of course, that Ngcobo is a liberal machine whose legal analyses could be easily predicted. In the Thint case, for example, he wrote a dissenting judgment in which he disagreed with the majority’s balance of privacy laws, with the state’s mandate to prosecute crime. He also showed an illiberal attitude in the Jordan case, refusing to decriminalise sex work. It is unsurprising that he displayed a similar flash of illiberalism in a more recent minority judgment that insisted children between the ages of 16 and 18 not be exempted from minimum sentencing guidelines.

While it would be ungenerous to characterise Ngcobo’s jurisprudential convictions as becoming increasingly less progressive , it is clear that he is fiercely intellectually independent, being comfortable to depart from the more regular liberalism of most of his peers.

Of course, being chief justice is not just a matter of lawyerly brilliance. It also requires someone with great administrative finesse. The court roll is lengthening and the jurisdiction of the court widening.

And, as is now old hat, the legal fraternity more widely is yet to recover from the deep racial and ideological divisions that nearly split it into pieces.

Ngcobo is not just fit for purpose because of his intellectual prowess. He is also well-respected among his peers, an attribute that will prove crucial in building a more efficient and more collegial community of professional lawyers. He has a reputation as being extremely hardworking and has an expressed interest in transforming the judiciary.

Transformation, for Ngcobo, will centre not just on questions of race and gender equity, but also sustaining the court’s work ethic, while providing inspirational leadership . We can all sleep more peacefully now: there is likely to be broad jurisprudential continuity with the past 15 years’ jurisprudence.

Ngcobo’s is a safe pair of hands.