Dispensing with the habitual euphemisms and studied politeness, the Supreme
Court of Appeal (SCA) has put Judge Nicholson firmly in his place. As many
lawyers who bothered to read Nicholson’s
imaginative judgement last September anticipated, the
appeal court judges were unstinting in their assault upon both his reasoning and
approach.
The judgement, handed down on Monday, is peppered with adjectives such as
“gratuitous”. By making findings about matters that were not at issue and not
legally germane principally the excursion that led him to conclude that there
had been “political meddling” in the Zuma case the SCA found that Nicholson
had delivered “judgement by ambush” and thus exceeded the limits of his judicial
authority.
“The independence of the judiciary,” noted the SCA crisply, “depends on the
judiciary’s respect for the limits of its power.” Quite so.
Showing a commendable, and topical, knowledge of soccer, the SCA said that
Nicholson had “changed the rules of the game, took his eyes off the ball and
red-carded not only players but spectators” (a reference, of course, to former
president Thabo Mbeki).
For the skiers among you, it found that Nicholson had gone way “off piste”.
There are a number of important and noteworthy aspects of the judgement beyond
its immediate political consequences. First, it was delivered by a unanimous
court; all four of the other appeal court judges concurred with Justice Louis
Harms.
Second, the SCA also called Zuma’s legal strategy to account. Part of the costs
order against Zuma was on an “attorney-client” scale which is indicative of
the level of disapproval of those elements of Zuma’s legal arguments. Those who
have funded his litigation
strategy of elongated filibustering
in the past and who will do so in the future because the game is by no means
over should understand what it is that they are funding.
Third, the judgement makes important observations about both the relationship
between the minister of justice and the National Directorate of Public
Prosecutions (NDPP). Both sets of observations were triggered by Nicholson’s
errors in approach. As the Ginwala inquiry’s report has subsequently
illustrated, the relationship between the NDPP and the minister (or the Cabinet,
for that matter) is a nuanced one. It is not, ruled the SCA, contradictory to
have a situation whereby the prosecuting authority must perform its functions
without fear or favour, while the ultimate responsibility for prosecutions vests
with the minister of justice. More thought needs to be put into the conventions
that should govern the operation of this delicate relationship.
Beyond these matters, the SCA has, by stripping away the extraneous material,
isolated the core legal issue: was the decision of (acting) NDPP Mokotedi Mpshe
a “review”, albeit of a previous decision, as defined by section 179(5) of the
Constitution? The court was clear-minded: it was not. Either a reconsideration
of a previous decision of the NDPP was not a “review” as envisaged by the law
(section 22 of the NPA Act) or it represented, in fact and law, an entirely new
decision to charge Zuma. Either way, Zuma had neither been deprived of the
“right” to be invited to make representations, nor had his “legitimate
expectation” of such an invitation been unlawfully denied.
This is very probably a correct
interpretation of the law. But, since Zuma will presumably
appeal the decision in the Constitutional Court, there will be a further, final
opportunity for interpretation.
One can anticipate that the Constitutional Court will be willing and able to
hear the case urgently,
well in time for an April, or even a late March, election date: the country’s
highest court’s tolerance of Zuma’s delaying tactics has already been tested
once and is unlikely to be given any latitude now.
However, Zuma will also, presumably, reinstate his application for a permanent
stay of prosecution. The scope for joining the two actions may be examined but,
unless that happens, it is entirely likely that the permanent stay application
will proceed up the court system at a more leisurely pace unless the NPA can
find a smart way of speeding it up.
Nonetheless, the ANC will obviously enter the election campaign now knowing that
its president, and its candidate for the presidency of the country, is charged
with serious corruption charges.
Thus far, its post-Polokwane leadership has shown an apparently inexhaustible
appetite for sticking with Zuma. But with the disorienting effect of the
Congress of the People now muddying the waters, the political calculus may have
changed. Has the ANC’s appetite for risk been blunted?
- Richard Calland is associate professor in public law at the University of Cape
Town and director of its Democratic Governance and Rights Unit
With acknowledgements to Richard Calland and Mail and Guardian.