The first thing that strikes me about the Constitutional Court judgment in the main Zuma application is that it was not unanimous. Justice Sandile Ngcobo dissented and would have found in favour of Zuma and Thint. Given the extraordinary political implications of the judgment, it is fair to assume that the Chief Justice would have tried very hard to get consensus among the judges to deliver a unanimous verdict.
The fact that Justice Ngcobo dissented will thus raise eyebrows among Constitutional Court watchers. In the year before the current Chief Justice and Deputy Chief Justice were appointed, many of us noticed that Justice Ngcobo suddenly wrote an extraordinary number of opinions, either dissenting from the majority or concurring with it in a separate judgment. Some interpreted this zeal as a sign that Justice Ngcobo had ambitions to become Chief Justice and was trying to show his mettle.
The fact that he has dissented in this case may create the impression that he is trying to position himself as an alternative candidate to Deputy Chief Justice Dikgang Moseneke for the post of Chief Justice when Pius Langa retires next year.
This perception may well be unfair. He might just have a view that the rights of individuals should weigh far heavier than the interest of the state and of society in fighting crime. After all, he wrote the dissenting opinion in the Prince case and argued there that the state had not justified the law that failed to make an exception for Rastafarians to posses and use dagga.
Nevertheless, a dissenting opinion in such a high profile case that went against the man who might well appoint the next Chief Justice, will not go unnoticed.