James Myburgh on the overturning of the initially lauded judgment in the Zuma case

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 *1."

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 *2 asserted that, "Nicholson's judgment was tactical *3: 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 *."