Was the SCA right to 'braai' Nicholson?

On Monday this week the Supreme Court of Appeal unanimously upheld the National Prosecuting Authority's appeal against Judge Chris Nicholson's decision to set aside the decision by Acting National Director of Public Prosecutions, Moketedi Mpshe, to prosecute ANC President Jacob Zuma. The judgment delivered by Judge Louis Harms, with Justices Farlam, Ponnan, Maya and Cachalia concurring, gave short shrift to the legal basis on which Nicholson had ruled in Zuma's favour.

The real weight of the judgment though was directed at Nicholson for his finding that President Thabo Mbeki (and others) had meddled in the work of the NPA in an effort to frustrate the ambitions of Zuma. The headline of Beeld the following day was "Appèlhof braai Zuma-regter." This aspect of the SCA's judgment, Harms was careful to note, was "not about whether there was political meddling in the decision making process. It is about whether the findings relating to political meddling were appropriate or could be justified on the papers."

To understand why this is important it is worth asking how the press would have responded if Nicholson had simply made his claims as an ordinary individual in, say, a newspaper article. I suspect most editors would have cast a rather wary eye over them. He brought no new or unfamiliar facts into the public domain, and his reasoning was not particularly compelling (see here).

If accepted for publication such an article would probably not have had much impact, and there would have been nothing to stand in the way of other writers robustly critiquing it. It certainly would not have been regarded by the ANC as a sufficient basis to justify the removal of a democratically-elected president from office - even one as intensely disliked as Mbeki was.

Yet, if one looks back at the initial press reaction to Nicholson's ruling on September 12 2008, most newspapers were completely swept away by it. Jacob Zuma had been vindicated, and Mbeki was dammed. The Weekender noted in its editorial (September 13) that "the case was ostensibly about Zuma" and whether the decision to charge him had been taken fairly but, "it was President Thabo Mbeki and some of his administration's most senior members who emerged looking guilty."

On the same day the Saturday Star concluded its editorial by stating that last week "we asked you, our readers, to consider what interest would be best served by the further prosecution of Zuma. Today, we say boldly, it is in no one's interests. Let this matter go now, once and for all."

The Sunday Times (September 14) said that his findings on the actions of Mbeki and his executive "are so devastating that [Mbeki] has no honourable option but to leave office....he must accept the court's finding and he must concede that the prosecuting authority was influenced by fear of his anger."

In the light of the judgment, and the moral climate generated by it, the ANC felt sufficiently emboldened to remove Mbeki. On September 20 2008 the party's national executive committee released a statement saying that, having deliberated on the Nicholson judgment for two days, "and after a long and difficult discussion, the ANC has decided to recall the President of the Republic before his term of office expires." It was really only after the NPA announced its decision to appeal, and set out 16 cogent grounds for doing so, that opinion began to become slightly more sceptical.

There were two reasons for this uncritical initial reaction. Civil society had been holding the line against the Zuma camp's brutish public attacks on the judiciary by arguing that the decisions of the courts should be respected. Even though Nicholson's ruling was both improper and bad in law - and deserving of thorough critical scrutiny - informed opinion found itself suddenly hoist on its own petard.

More important, perhaps, was the belief that our judges do not (and would not) make such findings lightly or unfairly. The very thing that gave Nicholson's views weight and credibility then was the implicit faith that he was following the basic tenets on which judicial authority and reputation is founded.

In fact he was brazenly flouting them. As Harms pointed out Nicholson had failed "to confine the judgment to the issues before the court", decided "matters that were not germane or relevant", created "new factual issues", made "gratuitous findings against persons who were not called upon to defend themselves", and failed to distinguish "between allegation, fact, and suspicion."

In particular, Harms wrote, Nicholson's findings against Mbeki and the cabinet "were not based on any evidence or allegation. They were instead part of the judge's own conspiracy theory and not one advanced by Mr Zuma. Furthermore, the finding, by implication or otherwise, that a non-party may have committed a criminal act where this was not alleged, where it was not in issue and without hearing that party is incomprehensible."

The question left unanswered by the SCA's demolition of the legal merits of the Nicholson judgment - is what Chris Nicholson thought he was doing? The SCA merely describes Nicholson's departure from accepted norms as "impossible to fathom."

In Business Day on Tuesday Steven Friedman baldly asserted that, "Nicholson's judgment was tactical: it was an attempt to protect the independence of the courts in a context in which it seemed that a more straightforward judgment might have placed the judiciary in peril....[I]t is sometimes necessary for the courts to choose their battles carefully so they might live to judge independently another day."

What this implies is that Nicholson deliberately let Jacob Zuma off the hook, in order to defuse the political pressure then building up on the courts. Although couched in sympathetic language this would, if true, be a serious indictment. It is one thing for a judge to misinterpret the law, or act incompetently - quite another for him to write a 115-page judgment knowing it to be unlawful. If such considerations did come into play, it would mean that the Zuma camp's efforts to intimidate the judiciary eventually paid off.

Given that the NPA was under greater political pressure than the courts - and enjoyed far fewer protections from it - there was a reasonable prospect that it would ‘bow to the inevitable' and not appeal. This was a possibility made more, rather than less, likely by Nicholson's scathing attack on the credibility of the NPA. In this case the merits of the judgment would never have been subjected to the scrutiny of the SCA, and his findings would have stood. And as Plato wrote, "the most complete injustice is to seem just, not being so."

The question now is where to for Jacob Zuma's supporters in the ruling party?

There are two obvious options for the ANC to pursue, given that the ruling party is determined not to let the case come to trial. The one is for Jacob Zuma to continue to pursue his legal strategy of endlessly appealing on every conceivable point, no matter how contrived. This is only possible given the unlimited (taxpayer) funds at his disposal. This may buy time, but it does not make the problem go away.

The other is to make the case quietly disappear through a-behind-the-scenes subversion of the judicial process. This is what has been euphemistically termed the ‘legal solution'. Here, a centralised but currently headless National Prosecution Authority is the obvious target of the ‘baleful political influence' that needs to be exerted.

Such initiatives may or may not succeed in the short term. But once the process to remove Vusi Pikoli as National Director of Public Prosecutions has been completed the new ANC will be in a position to insert a candidate of their own choice into that position. As Professor Pierre de Vos observes, "if President Motlanthe then appoints, shall we say, a more disciplined member of the ANC as head of the NPA, the 'political solution' to [Zuma's] legal troubles might yet be found."

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Nicholson As the first judge to be found guilty of subverting the judicial process, the best we can hope for is that the comrade judge is tried under the Prevention of Corruption Act. Quoting from memory, there is a specific provision which deals exactly with this . .more sort of situation. But Nicholson is not really the guilty one, this former "activist" lawyer (read left-wing) merely did what he was deployed to do. The kingpins (as the journos put it) are, surprise-surprise, the same folks who have covered up the arms deal, protected Selebi and Mugabe, lined their pockets maintained the SABC as the mouthpiece of the ruling party and are subverting the economy - the ANC collectively. Both factions, that is; the fact that they are embroiled in a perks-scrum doesn't alter this. Mbeki, Zuma, Lekota, Mothlanthe, Asmal, etc were all part of the cadresation and corruption of state institutions, from the humbles school to the Courts, Eskom and SCOPA. . .less by Colin on January 15 2009, 07:49 Find this comment inappropriate? Report it

It was coming.. I know of another matter where Judge Nicholson caused the demise of a popular and successful community radio station for the very same reasons as he has been faulted in this matter. In going through that judgment even a lay person could tell he went far . .more beyond what was necessary simply to sink the ship and consequently unfairly deprived thousands of listeners of their favourite station. Bloemfontein would have overturned it as well if the SCA had allowed the appeal. . .less by Goodness on January 15 2009, 09:03 Find this comment inappropriate? Report it

Zuma supporter Relax dude - yes, we know you'll support old Zuma until the bitter end but don't come bleating to the west for aid when you end up like Zim - it's only a matter of time. And please stop imsulting baboons by JZ on January 15 2009, 09:59 Find this comment inappropriate? Report it

@Zuma supporter I have to agree with JZ. You keep on supporting Zuma because you know nothing better, not because he'll be the best president. And when SA looks like the rest of "de-colonialised" Africa, you'll probably be proud to the extreme, with absolutely buggerall . .more to show for it. . .less by Jaap Marais on January 15 2009, 10:16 Find this comment inappropriate? Report it

Zuma supporter The judge never labled Zuma guilty. The judgment means that Zuma remains charged. You may support Zuma, it just reflect the capacity of average voter in this country. No wonder sub-sahara Africa is such a dump. "The big chief mentality". But hey, I do . .more not blame you Zuma supporter, 30 000 years of evolution lag is at fault here, not you! . .less by AP on January 15 2009, 10:19 Find this comment inappropriate? Report it

@ zuma supporter jeez bra, its hard to imagine that you are for real and not a troll. but if you are, maybe you've highlighted the heart of the matter: the belief that you have the right to govern based on ethnicity and history as opposed to a true democracy where your . .more ability to govern is measured. the ANC has yet to convince that it will be honest and upright and will put the interest of the country ahead of itself. true character is being unveiled in these days.... . .less by mokganjetsi on January 15 2009, 10:26 Find this comment inappropriate? Report it

zutanic is sinking.. and taking the afr nat corruption-anc- with it. catch 22 i would say. 1. plea bargain= admission of guilt 2. constitutional court = same result as sca 3. stand trial = step down as candidte Is there really still someone in SA that . .more believe jz is innocent? Stop wasting tax payers money!! just throw jz in jail and let's get on with decent business. . .less by pietie on January 15 2009, 12:33 Find this comment inappropriate? Report it

Latest Zuma Judgement Apart from the comedy being played out by our judiciary - where one Judge has to teach another what the law is - at HUGE costs to taxpayers in SA - I was wondering what would be the outcome of this process - if Jacob Zuma was given the right to be tried . .more in a court of law in front of a jury of his peers? Interesting thought. Anyone like to offer a comment? Being judged by a jury of one's peers is quite normal in most societies- The NATS did away with the system - I wonder if the next step will be for parliament to re- introduce it into our legal system - after all it was done to suit the whites. Hmmm now theres a thing ! . .less by Peterw on January 15 2009, 13:00 Find this comment inappropriate? Report it

Nicholson The SCA decision is a terrible indictment of Nicholson and the whole high court system. Fundamentally, lets be blunt, Nicholson's "activist" instincts took over and he deliberately subverted the case to suit Zuma. I dont think we need to look beyond . .more that. Our judiciary is full of such people, appointed by ANC apparatchiks in the JSC. I cite Hlophe as prime example. Even the Con Court has an excessive number of leftist, activist bozos. It is however, a relief to find that the SCA can still marshall a bench of 5 judges who are capable of sound, correct, unbiased assessment. Another concern is the Nicholson-supporting press who didnt query his findings, just meekly accepted them? It speaks volumes for how our media have become sycophants of the ANC! Independent Newspapers, in particular, might just as well put the ANC logo in their masthead! All because O'Reilly wants to make money here? SA is on the slippery slope: The ANC who ignore the Rule of Law and preside over corruption and crime. The judiciary who support them and a press that has become a lapdog! Do something, DA, COPE and ID, for heaven sake!! . .less by Jack on January 15 2009, 16:27 Find this comment inappropriate? Report it

Please quit now Zimbabwe, is always a bad example to use and even to mention as it sounds as if people want to proof a point, reality is Zuma is showing the same traits as Mr Robert Mugabe. Any human being with dignity, who personally acknoeledged that the people hate . .more him (Which is the deeds done and not hom) should step down and not try to serve people who do not want you . .less by Zumanite on January 15 2009, 18:30 Find this comment inappropriate? Report it

My goodness but our bench of judicial personalities seem hell bent on making complete prix of themselves. every time Zuma goes to court he is handed one judgement by one set of clowns and a contrary judgement by another. We have a drunk judge who has . .more manged to drag his case through the courts for about three years now and still no judgement. we have a Supreme court which is having saly poured on its tail by Hlope. We have Nichol-somebody who seems to compete with Marthinus van Schalkwijk for the honorary title of boy scout tom fool of the year. He really is living proof that Natal is the last outpost of the 17th century. And then we have the combination foxtrot and two-step of the ANC collective who either threaten the forces of the counter revolution when things dont go their way or else profees undying respect for the judicial process when they get a favourable judgement. What a fiasco. . .less by Plutarch on January 15 2009, 21:22 Find this comment inappropriate? Report it

ZUMA Not long it was You people calling Malema and Vavi names for attacking Judges.Now is you attacking a Judge, Malema & vavi defending them. Eish SA is a funny place........ by JZZZZ on January 16 2009, 13:00 Find this comment inappropriate? Report it

@Jack Jack, the DA, COPE, ID, UDM et al, can't do anything against the liberation driven frenzie of ordinary voters who insist on voting ANC (60-70% ). It is the African way. "Democracy" in Africa is different to democracy in Malaysia; different to Singapore . .more and different to the West. Although "western" style democracy is not fail proof at least most voters THINK about who they should vote for, and vote for what would make practical sense. Not so Africa. . .less by Goodness on January 17 2009, 17:51 Find this comment inappropriate? Report it

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