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Interview with Justice SS Ngcobo
April 1999
Judge Mahomed:
Judge Ngcobo thank you for coming to talk with us. We appreciate your presence. Thank you also for responding to the questionnaire which you are required to submit. Judge Ngcobo your career is well known. You are now forty six years old are you?
Judge Ngcobo:
Yes, indeed Mr Chairman.
Judge Mahomed:
And you acquired your first law degree a B. Proc in 1975. Thereafter you went on to acquire an LLB. Then you attended an orientation course on the United States Legal System in 1985 and eventually you got a Master of Laws from Harvard in 1986.
Judge Ngcobo:
Yes.
Judge Mahomed:
You were admitted as an attorney in 1981 and as an advocate in 1988 but in between you were a law clerk to the late Justice Higginbottom, one of the distinguished and great constitutional lawyers in the United States and during the course of that experience you were exposed to a considerable amount of constitutional issues which would be of great relevance for us as well.
Judge Ngcobo:
Yes indeed.
Judge Mahomed:
You became an acting judge of the High Court in the Cape in 1996 after approximately eight years at the Bar as an advocate.
Judge Ngcobo:
Yes.
Judge Mahomed:
That was a career concentrated, I think, in Durban.
Judge Ngcobo:
Yes, indeed.
Judge Mahomed:
And you became a permanent judge of the High Court of the Cape from 1 September 1996.
Judge Ngcobo:
Yes.
Judge Mahomed:
Thereafter you climbed rapidly. You became a judge of the Labour Appeal Court in November 1997 and you are presently the acting Judge President of the Labour Court are you not?
Judge Ngcobo:
Yes I am.
Judge Mahomed:
In addition to that you are an honorary professor of law at the University of Cape Town since February this year and you have also been appointed as chairperson of the Rules Board.
Judge Ngcobo:
Yes, indeed.
Judge Mahomed:
In which you have been quite energetic.
Judge Ngcobo:
Yes, indeed.
Judge Mahomed:
But your experience starts from the bottom as a clerk of the civil and criminal courts and also as a public prosecutor in the magistrate's court. You also worked with Mr Mthiyane's firm as an articled clerk and you had a considerable amount of exposure at the Legal Resources Centre in Durban.
Judge Ngcobo:
Yes. I did.
Judge Mahomed:
You also had some academic exposure at the University of Pennsylvania.
Judge Ngcobo:
Yes.
Judge Mahomed:
And you have written on issues pertaining to race discrimination and the law.
Judge Ngcobo:
Yes.
Judge Mahomed:
You have been the recipient of a number of fellowships and scholarships. There can be no doubt about what is a versatile and distinguished career in the law in the face of what must have been very considerable disabilities.
Judge Ngcobo:
Yes, indeed Mr Chairperson.
Judge Mahomed:
Judge Ngcobo when nominations were first called for the position of a judge on the Constitutional Court to fill the vacancy created by the death of Mr Justice Didcott, you did not make yourself initially available. What made you change your mind?
Judge Ngcobo:
Well firstly I wasn't aware that the position had been advertised. I was made to understand at some point that it probably was not in some of the notices advertised which should have advertised.
Judge Mahomed:
I see.
Judge Ngcobo:
Firstly I was never asked at that stage.
Judge Mahomed:
You never became aware of it?
Judge Ngcobo:
Indeed.
Judge Mahomed:
I see. Now of course for some time now you have been in Johannesburg when you were on the Labour Appeal Court and you were then physically living in Johannesburg. Living in Johannesburg is apparently not a problem.
Judge Ngcobo:
Well at the moment yes, I am living in Johannesburg.
Judge Mahomed:
You have done that for some time?
Judge Ngcobo:
Yes, I have been there since the 1 October last year.
Judge Mahomed:
I will just ask my colleagues if they have got enquiries.
Judge Chaskalson:
As the Chief Justice pointed out that before you joined the Bar you had some years practise as an attorney at the Legal Resources Centre in Durban. That is when we first got to meet each other and to know each other.
Judge Ngcobo:
Yes.
Judge Chaskalson:
You then went to .... At a certain stage you went off to America. Could you tell us a little bit about your experience in America. Your time at Harvard, your time with Judge Higginbottom and I think after that you also spent a bit of time at one of the large firms in Pennsylvania. Perhaps you could talk about that whole period in your life and what it meant as far as your development was concerned?
Judge Ngcobo:
Yes. When I left in 1995, I think it was, I think it was at the height of the repression here.
Judge Chaskalson:
Sorry, it would be 1985 wouldn't it and not 1995?
Judge Ngcobo:
Yes it was about 1985. Yes indeed. I was determined to get exposure at that stage to public interest law firms in the United States in view of my association with the Legal Resources Centre. I suppose at the time I was relatively young. I have grown since then but I was relatively young at the Bar. My experience at Harvard was a very rich and a rewarding experience in particular because the LLM programme brings together a number of distinguished jurists from all over the world who come and share their experience with other participants in the graduate programme and apart from that I also found the teaching methods at Harvard Law School to be very stimulating and I had a magnificent professor of law, Professor Parker, who taught constitutional law which was more of a philosophical analysis of constitutional argument. The main thrust of the course was looking at why do judges accept that particular constitutional argument. What informs constitutional argument and constitutional adjudication and apart from that I was exposed to a number of other areas of law such as international law and a bit of labour law in the US and that is when I met the late Judge Higginbottom who taught a seminar on race legislation which was a course focusing primarily on the duality of the legal process. In other words it is an instrument
which can be used to impose racial oppression as one saw in the country and in other parts of the world and also it can be an instrument to remove this kind of oppression as one saw in the decision of Brown v The Board of Education and at that stage I began to develop an interest in the role of law in society and I took part in teaching that seminar at Harvard, Stanford and the University of Pennsylvania, assisting primarily Judge Higginbottom in teaching that course. We were doing at the time a comparative analysis because there are striking similarities in terms of not only of the language that our judges use here and the kind of mentality that informed their decision in terms whenever they dealt with matters involving race. So it was a fascinating comparison. After finishing my programme at Harvard I was then awarded a Human Rights Fellowship Programme which placed me with Judge Higginbottom both as a law clerk and also as a research associate. Being a research associate is when I conducted research into matters of race and the law and I also served as a law clerk which essentially required me to go through the briefs filed in the Court of Appeal of the third circuit and prepare what we then called a bench memo which is a prima facie view of how you see the issues and where the options lie in regard to those issues and after the argument if your judge had been assigned to draft, to write the judgment it is your responsibility to guide your judge and then of course the judge would have the final say. But that was a marvellous experience which ironically brought me closer to the Bench than it had done before and I remember in 1990 I think it was,
I had the privilege of meeting the former Chief Justice, Justice Corbett and we had occasion to discuss the problems associated with appointing judges and in a body such as this was one of the issues that we discussed way back in 1990. That experience of getting exposure to human rights was not enough for me. I also had a passion for labour law so I was offered a four months internship with a major law firm in Philadelphia. After remaining with them for about four months they offered me a permanent position. Unfortunately it took me almost two years to get a visa, to get the government to waive the visa requirement so that I can return to the US, but anyway I ended going back to the US where I remained until about February 1992 I think it was. Working at a major law firm in the US was like an eye opener. In a sense it instilled in me a sense of confidence. You are the only foreigner in a major firm having approximately fifty lawyers and there is a major case involving the railway strike and you are assigned by the senior partner to be in charge of that litigation. It was a marvellous experience. It was a recognition which I will never forget because in a sense it vindicates ones determination to do the best. When I was with this firm that is when I got exposure to labour law and some of the issues that we dealt with involved constitutional matters, the constitutionality of affirmative action programmes and related matters.
Judge Chaskalson:
Judge Ngcobo you were, how long in all, in the United States? It must have been five, six years?
Judge Ngcobo:
In all I would probably say five years because I left in 1985 returning in December of 1987 to wait for the waver of the visa by the South African government which only took place almost two years later. I went back in 1989 I think it was and I was there until about 1992.
Judge Chaskalson:
So it was a very important period of development in your own legal background.
Judge Ngcobo:
Oh yes, indeed.
Judge Chaskalson:
And when you started practice I think you moved immediately into the field of public interest law working in very difficult circumstances at the Durban office of the Legal Resources Centre which involved challenging a whole variety of laws at that time.
Judge Ngcobo:
Yes. Indeed.
Judge Chaskalson:
So you have in fact a commitment to the public interest, to constitutionalism and the law. Can you tell us what you see as the role of a Constitutional Court judge and how you might contribute towards constitutionalism in this country?
Judge Ngcobo:
I think the starting premise is to recognise that the Constitutional Court is the guardian of our democracy. They have the final say in what the Constitution says. That is an enormous amount of responsibility and I see the role of a judge of the Constitutional Court to be giving effect to the protection because you have got a Constitution, you have got to enforce it.
Judge Chaskalson:
Do you feel that you have any... could you tell us what you would bring to that and what your philosophical attitudes are. I don't want you to get into particular cases but how you ... just to talk about your own philosophy, your own position in regard to constitutionalism, what you would bring to the Court?
Judge Ngcobo:
Yes. Well I believe firmly that in the scheme of our democracy the Constitutional Court is the institution which has to say what the Constitution says. That is what I believe in because that is their obligation. Now in regard to what kind of contribution that I would bring to that court, if you look at my legal career it set off in 1978 I think it was and I have been involved with virtually every court that deals with the majority of people in South Africa. I have been involved in the commissioner's court and that was the court which dealt largely with customary law and I have no doubt in my mind that sooner or later the Constitutional Court will have to decide or will be called upon to decide issues involving tension between customary law and the Constitution and having regard to my background from Natal and knowledge of customary law and you know black culture in general I would think that I will bring a very unique perspective in the debates which take place in that court.
Judge Chaskalson:
Tensions around race and gender?
Judge Ngcobo:
Yes.
Judge Chaskalson:
The role of the legislature, the role of the courts. How do you see yourself in relation to those types of issues which come to the Constitutional Court?
Judge Ngcobo:
Well I think the important thing to recognise is that the organising principle of our Constitution is equality. Equality of all before the law and I think that that is the most important thing which should be the guiding principle in one's development of the law. The process of adjudication and determining the rights of individuals viz a viz the government. Again in matters involving race, gender and that is the main important thing to bear in mind, equality which is the main goal of our Constitution.
Judge Chaskalson:
Yes. You have been concerned with the rules, you are chairing the Rules Board at the moment. Do you feel that there is any need for revision of rules as far as the Constitution is concerned, constitutional litigation or do you feel that the existing rules of court are adequate to deal with constitutional litigation?
Judge Ngcobo:
I don't think so. Shortly after my appointment as the chairperson of the Rules Board I consulted mostly with various stake holders and I have consulted with some of the members of this panel in an endeavour to determine what from your perspective do you consider to be the role of the Rules Board and I have even consulted with traditional leaders and emerging from that consultation I am satisfied that the major challenge facing the Rules Board at this stage is to ensure that it gives meaning to the guaranteed right of access to courts and that one does by ensuring that our rules provide a speedy access to court, simplified procedures, and ensure that the rules can be read by any individual. It should not, in my view, be the preserve of lawyers. So that is the major challenge facing the Rules Board. An attempt very recently has been done and I know that at our first board meeting we will be considering proposed amendments to the rules of the High Court where incrementally though we are ensuring that the rules of the High Court are brought into harmony with the rules of the .... But I don't think that is enough. I think what one needs is a comprehensive review of the rules. I mean you take into consideration that these rules were last developed in 1965 I think it was, and since then there has never been any major review of those rules. In the meantime we have had major developments, technological and otherwise. We have a new Constitution. We have new technology so our rule ought to be brought into line with these developments.
Judge Chaskalson:
Do you see any relationship between constitutionalism and labour law which has also been a particular interest of yours?
Judge Ngcobo:
Oh yes indeed. I am sure there will be. There has to be and in particular there is a legislation which would raise fundamental issues in regard to the rights of the individual. I am thinking of the Employment Equity Act for example. Then there will be a question as to the accent to which that law for example infringes upon the rights of others to the extent that it may require equal opportunity for those communities, for those persons who may have been disadvantaged in the past.
Judge Chaskalson:
In a very day to day manner I suppose labour law is concerned with some of the underlying values of the Constitution itself.
Judge Ngcobo:
Precisely.
Judge Chaskalson:
Thank you very much Judge Ngcobo.
Mr van der Merwe:
Thank you Chief Justice. Judge Ngcobo you are a judge of the High Court here. You also act as the Judge President of the Labour Court. You now aspire to become a judge of the Constitutional Court. Those are three. Could you kindly say which one, if you in a position to choose, which one is your first choice?
Judge Ngcobo:
Well the problem Mr van der Merwe is that I have come to realise over the years that my interests are somewhat irrelevant in this country because of the responsibility that one has as a black person. If you look at the Constitution for example, the Constitution requires that the judiciary must be broadly reflective of the race and gender composition of South Africa. Now if I am called upon to allow my name to go forward in order to enable the President of this country and this body in particular to fulfil that constitutional mandate I consider it to be my responsibility to allow my name to go forward. Secondly and more importantly the Constitutional Court is the highest court in the land. These first few years of this court are very crucial. It is involved in the shaping process, shaping our democracy in much the same way that our Constitution was a product of a process where many participated. It was an all inclusive process and it seems to me that the process of shaping the constitutional jurisprudence must be…so I guess the answer will be having regard to my obligation I would go to the Constitutional Court.
Mr van der Merwe:
Am I correct in saying then your first choice, if you had the choice would be the Constitutional Court?
Judge Ngcobo:
Yes, indeed.
Mr van der Merwe:
Thank you sir.
Adv Gordon:
Judge you and I know each other quite well. We have worked together. My best friend's son is your clerk research assistant and we have been working recently on a particular branch of the law in regard to the rules. The question which the Judge President of the Constitutional Court asked you was half the question which I was going to ask you and that is in relation to your view of the future of the rules, because the rules of court are very important, you answered in regard to access to justice which we certainly had a discussion over, but there was another aspect of your view generally toward how rules should operate which you and I have discussed which may be of some interest to the other members of this Commission in how you see the future and that is would you be kind enough just to give us a short exposition on your attitude toward the importance of re-thinking the discovery procedures as the impact that that has on litigation and generally the functioning of the courts. I know you have some views on that.
Judge Ngcobo:
Yes indeed. You see my research has indicated that in many countries, not in Australia and New Zealand to a certain extent, there is now a move away from the sort of adversarial stance which is adopted in South Africa in particular and what is required is that litigants are required to make statements which statements would, when the matter comes to court, spend as evidence in chief. By the time you go to court you have ... you know exactly what case you have got to adjudicate and perhaps more importantly for the presiding judge is that the presiding judge know what those issues are and in a sense the judge can then regulate the proceedings because invariably you find that trials take a very long time to finish because of issues which should not be issues. One doesn't know accepting sufficient information which barely allows the litigant to escape an exception or some other defect in the proceedings and I believe that one should move away from the adversarial position. Parties should come to court, present fully what their case is on a piece of paper so as to make sure that you know exactly what the case is. After all if you are making a statement which is the basis of the evidence that you are going to lead I can't understand why a person would not be willing to have that disclosing comment. Take application proceedings for example where you prepare affidavits and if the matter for some strange reason or another has to go for oral evidence, those documents are there. You may cross examine on them, the issues are limited and each party can prepare. That in a sense does tend to shorten an otherwise long case. I know you and I have discussed a whole variety of philosophical views. I am not sure that covers what you had in mind.
Adv Gordon:
Thank you judge.
Adv Bizos:
Judge Ngcobo, you describe your detention from July 1976 to July 1977 as legal experience. Was that your first legal experience?
Judge Ngcobo:
I think in a sense it was some kind of a practical training but let me say this I suppose I have no idea where to put it but the reason why it is there is because I went for an interview many years ago and then at the end of the interview these gentlemen, they were all men, said to me but there is a gap here. What were you doing during this gap which of course is the problem of having a very detailed CV. I said of course, yes, that is the time when I was in detention. Then they said to me why didn't you disclose that fact. So as a result I decided to disclose that. You ask why it is there? I suppose it is legal experience in a sense because when you are in detention you deal with matters of law. From time to time you have to appear before a special tribunal within the prison and then are charged with a whole variety of misconduct such as failing to wake up early and also defending your colleagues. So in a sense I think it does come very close to legal experience. But I am open to any suggestion.
Adv Bizos:
You know all human behaviour is motivated and I have my own agenda for asking this question. You are probably a good witness to tell us of having been detained without trial for a year, whether any pressure was put on you to incriminate yourself?
Judge Ngcobo:
The methods of the police then which they used in extracting the truth is unfortunately some of what you hear before the Truth Commission. Not all of it but some of it. When they come to you, they have been to their informers, they know exactly what case they have against you in minute detail. Thick statement detailing everything that you are supposed to have done and all you have to do is to confirm that. Now there a number of ways you could avoid being tortured or being killed. You resist up to a certain point and you say let me die or you say OK I will sign the statement and you come to court and say that is not my statement but there can be no question about the amount of pressure. The conditions are just so conducive to pressure that it is unbelievable because you are detained. First of all when you are taken they tell your parents he is just going to see the captain and will be back within about an hour. You never see your mother until one year later. All you see is just police, security branch members.
Adv Bizos:
You cannot be unaware that there are pressures because of the crime rate and other circumstances that were said to exist in the country. To bring back a modified form of detention without trial and to abrogate the rule against self incrimination, as a person who had such an early legal experience with an extreme form of these matters where do you stand in this debate as to whether the Constitution should be amended in order to bring some of these things back?
Judge Ngcobo:
There is a very important learning that one learns from the holocaust and that is those who cannot remember the past are condemned to repeat it. You know if I look back at what happened in detention and if what one is hearing emerging from the Truth Commission one would be very reluctant to endorse any form of detention without trial unless they are such safeguards which would ensure that none of the atrocities of the past can be repeated. But of course in matters of this nature to the extent that it is a matter which deals with the Constitution my personal view are somewhat irrelevant. I do believe that I am sufficiently objective to be able to view those matters if they would come before me in an objective fashion but I would be very reluctant quite frankly to endorse anything unless the safeguards are such that this form of abuse of detention extracting confession by the use of torture can be eliminated. If that can be eliminated then perhaps one would have to look at that.
Adv Bizos:
Thank you judge.
Adv Trengove:
Judge you have been a member of the High Court and Labour Appeal Court benches I think now for three years. Is that right?
Judge Ngcobo:
Yes.
Adv Trengove:
If one includes your acting spell.
Judge Ngcobo:
Yes, indeed, yes.
Adv Trengove:
Of that just more than the last two years have been on the Labour Appeal Court.
Judge Ngcobo:
Yes. Probably on the Labour Appeal Court I have been sitting there since October last year.
Adv Trengove:
October last year?
Judge Ngcobo:
October last year.
Adv Trengove:
I thought it was earlier than that.
Judge Ngcobo:
Well there was an acting appointment, I think it was in 1997.
Adv Trengove:
Could you tell us judge in the jurisprudence of the Labour Court and the Labour Appeal Court does the new legislation, the new Labour Relations Act and its supporting bits of legislation cover the whole field or does the fair labour practise guarantee under the Constitution still play a role where labour legislation is silent?
Judge Ngcobo:
I think my basic philosophy in regard to labour disputes is that the starting point is the Constitution where it guarantees the right to fair labour practise and all the other labour legislation have to be interpreted in the light of that. What the present Labour Relations Act merely did was to codify most of the unfair labour practise jurisprudence which was developed under the old Labour Relations Act of 1996. It does not cover the whole spectrum. There are further legislation which is coming out, the Employment Equity Act which focuses on what one would call affirmative action and you also have the Basic Conditions of Employment Act which focuses primarily on basic conditions of employment but all of these, the interpretation of this, has to be informed by the Constitution and these three legislation and the others do not cover the whole spectrum. The Constitution still covers…
Adv Trengove:
I understand that the Constitution can play a role in the jurisprudence of the Labour Appeal Court in various ways. You mentioned the one, that it guides the interpretation of the legislation. Another possibility might be that pieces of the legislation might be subject to challenge under the Constitution. Does it happen though as a matter of practise that parties invoke the Constitution in areas in which they contend that the legislation is silent or is the legislation so comprehensive that there are no gaps in the field left anymore for the Constitution directly to apply?
Judge Ngcobo:
Well the case that comes to mind, I wasn't part of the panel that decided the case, but there was a case which had occasion to deal with the standard of review and the other thing of course is that the new Act only came into operation in 1996 so most of the labour disputes were still be dealt with under the old Industrial Court and it is only recently that the disputes under the Act are beginning to work themselves all the way up through the conciliations, CCMA, arbitration and then to the Labour Court. My reading of the Act, and the other legislation, I am satisfied they do not cover all aspects and there are cases where you know parties would invoke the Constitution for example. I know fairly recently I had occasion to sit in a matter where a member of Industrial Court had not been appointed and therefore he alleged amongst other things that that amounted to racial discrimination which was prohibited by the Constitution but that matter was disposed of.
Mr Moosa:
Judge Ngcobo in view of the view that you hold that he who does not remember the past is bound to repeat it, I wanted to hear you out on a small little matter. In the judgment of the State v Nombewu which we spoke about a little earlier today we heard that it was important to make value judgments and to consider the proportionality of a set of circumstances faced by the Court in, for example, deciding on matters such as admissibility or pointing out all those kinds of things. What is your view on that? Does the Constitutional Court invoke that kind of approach? Value judgments, proportionality approach to instances bearing in mind your view that we have a sad history and that there is no guarantee in any historical context about whether or not the country will go back there. Just a view on that.
Judge Ngcobo:
Well I have not had the occasion to sit on the Constitutional Court so my comment would largely be based on what I read and some of the judgments that I have had occasion to read. It may be .... I do believe though that there are some judgments where the Constitutional Court appears to recognise the past in justices,…. it that your question more or less does the Constitutional Court recognise our history and put that into perspective?
Mr Moosa:
No. If I may chairperson clear the matter up? The question I am asking is to what extent does a court invoke the approach of making value judgments in certain instances such as, for example, the admissibility of evidence or pointing out, given a set of circumstances we are faced with today where there is a very complex problem, faced by the administration of justice in bringing criminals to book or the great difficulty faced by the state in securing convictions in the absence of certain mechanisms such as the admissibility of certain types of evidence. What I am asking is what is your view should courts make value judgments in instances such as this?
Judge Ngcobo:
Yes. I believe, my basic philosophy is that what the judges, the process of adjudication, in particular constitutional adjudication is about interpretation of the Constitution. There may well be narrow areas where the Court may have to pay regard to these certain values but those should be the values I would have thought which would underline our Constitution. I don't think there is anything wrong in the Court giving effect to the values which underlie our Constitution and I think the Court is probably obliged to do that.
Ms Ngwane:
Judge Ngcobo just as a point of interest if I look at your CV and the questionnaire I see that the questionnaire was filled in some two and a half years ago I think when your eldest child seven and now she is nine and a half.
Judge Ngcobo:
She just turned ten last week.
Ms Ngwane:
That's right. Now in that questionnaire you had said that nine of your judgments had been taken on appeal. I was just interested to know if that statement still stands true today.
Judge Ngcobo:
I have lost track but before I left there were cases where I had refused leave to appeal, in which the Appellate Division had refused leave to appeal so I am not aware of any case that is pending at the Appellate Division at the moment. I may be wrong but in those matters where I have refused leave I have not kept track of those. There are probably two of them but most of them where I have refused leave they have been upheld by the Appellate division.
Judge Mahomed:
There seems to be no other questions. Judge Ngcobo thank you very much for talking with us. I appreciate very much your presence and your answers to the questions.
Judge Ngcobo:
Thank you Chief Justice.
- The Constitutional Court has made reasonable effort to ensure this is a proper reflection of the candidate's interview with the Judicial Service Commission. However, the nature of the recording and transcription process means that accuracy cannot be guaranteed.
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