Judge called to order

2009-01-12 00:00

When Judge Chris Nicholson made his findings about “political meddling” in the trial of Jacob Zuma he “changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators”.

This was one of the views expressed in yesterday’s judgment by the Supreme Court of Appeals — which was sharply critical of Nicholson’s findings.

The judgment was delivered by SCA deputy president Judge Louis Harms with four other judges concurring.

The SCA said Nicholson in his judgment failed to comply with basic rules of procedure and commented that “judgment by ambush is not permitted”. One of their criticisms related to his reliance on “inadmissible” newspaper articles.

They found the findings of “supposed [political] machinations” by former justice minister Penuell Maduna, former president Thabo Mbeki and other cabinet members were not based on evidence or allegations, but were “part of the judge’s own conspiracy theory” and not one advanced by Zuma himself.

The SCA nonetheless ruled that although Mbeki and other members of government had “ample reason to be upset” by the judgment, which “cast aspersions on them without regard to their basic rights to be treated fairly”, this did not entitle them to intervene in the appeal as they did not have a direct interest in the court’s order, but only in the reasoning.

Setting aside Nicholson’s main findings, the SCA ruled that Section 179 of the Constitution did not require the NDPP to invite Zuma to make representations on why he should not be prosecuted before indicting him, and provide Zuma with a full explanation why the former decision (of Bulelani Ngcuka) not to prosecute him was not adhered to.

The judgment found that “for reasons impossible to fathom” Nicholson in his judgment failed to adhere to some basic tenets applicable to judicial officers.

The SCA ruled that Nicholson failed to confine his judgment to the issues before court.

“Instead he decided matters that were not germane, created new factual issues; made gratuitous findings against persons who were not called upon to defend themselves; failed to distinguish between allegation, fact and suspicion; and transgressed the proper boundaries between judicial, executive and legislative functions,” they said.

While judges are entitled to express views about issues of the day, they are “not entitled to inject their personal views into judgments or express their political preferences”.

The court cited examples where Nicholson overstepped his authority. Two of these referred to criticisms of Mbeki’s dismissal of Zuma as deputy president, and his decision to stand for re-election as ANC president in the knowledge that he could not serve another term as president of the country.

“The propriety and legitimacy of Mr Mbeki’s decisions were not issues in the case and he was never called on to justify them. These matters are also not matters of law — they relate to purely political questions and once again, whether or not one agrees with the learned judge’s sentiments is of no consequence, the findings were gratuitous.”

The SCA said Nicholson’s “novel approach” to motion proceedings may serve as a “dangerous precedent” if left undisturbed.

The SCA stressed that its ruling about the aspects of the judgment concerning political meddling was not about the guilt or otherwise of Zuma, or whether the decision to prosecute him was justified. It was also not about whether the decision of the ANC to ask Mbeki to resign was warranted.

The SCA said it was about whether Nicholson’s findings of political meddling were appropriate and justified, and ruled they were not.

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