For four months he was the African National Congress's (ANC) darling -- the
"beautiful" judge who had the balls to speak truth to former president Thabo
Mbeki's political meddling in Jacob Zuma's corruption case.
On Monday Judge Chris Nicholson's career took an
Olympic-sized plunge, with speculation already rife as to whether he
would remain as the second-most senior judge in KwaZulu-Natal.
A unanimous Supreme Court of Appeal (SCA) bench, led by
overwrought deputy president Judge Louis Harms, dismissed Nicholson's
Zuma judgement with contempt, dedicating an entire
section in the judgement to "The Judicial Function", which
basically tells Nicholson he didn't know what he was doing *.
After delivering his scathing ruling in September, Nicholson was lauded as an
activist judge who, in the true tradition of the KwaZulu-Natal
bench, went beyond his call of duty to put South Africa back on track
after years of political conniving in Zuma's prosecution.
He slated Mbeki and his Cabinet for meddling in Zuma's trial and accused three
consecutive national directors of public prosecutions of wrongdoing.
On Monday, Harms erased all of that with one thick stroke,
putting an abrupt end to the ANC's short-lived euphoria
after Nicholson's judgement. It was, after all, a dream ruling for the ruling
party, which now faces the real possibility of going into the 2009 elections
with a fraud suspect at its helm *2.
But although Zuma was on the losing side this time and will now have to go
through another series of court appearances, it is Nicholson who stands bruised
and battered after Harms's scornful ruling.
Judges Ian Farlam, Azhar Cachalia, Mandisa Maya and Nathan Ponnan all agreed
that he was wrong to declare the charges against Zuma unlawful.
Nicholson ruled that Zuma should have been given the opportunity to make
representations to acting National Prosecuting Authority (NPA) boss Mokotedi
Mpshe before being recharged.
It was, however, not this part of Nicholson's ruling that attracted the
biggest amount of scorn, but his
from-the-hip comments about Mbeki, former justice
ministers Penuell Maduna and Brigitte Mabandla, and former NPA bosses Bulelani
Ngcuka and Vusi Pikoli.
Under "The Judicial Function", Harms lectures Nicholson on
the functions of a judge. "It is crucial to provide an exposition of the
functions of a judicial officer because, for reasons that are impossible to
fathom, the court below failed to adhere to some basic tenets, in particular
that in exercising the judicial function judges are themselves constrained by
the law."
Nicholson was correct to assert the judiciary's independence, but then went
off the rails.
"This commendable approach was unfortunately subverted by a failure to confine
the judgment to the issues before the court; by deciding matters that were not
germane or relevant; by creating new factual issues; by making gratuitous
findings against persons who were not called upon to defend themselves; by
failing to distinguish between allegation, fact and suspicion; and by
transgressing the proper boundaries between judicial, executive and legislative
functions."
The SCA found that Nicholson let his personal opinion on matters cloud his
judgement.
"Judges as members of civil society are entitled to hold views about issues of
the day and they may express their views provided they do not compromise their
judicial office. But they are not entitled to inject their
personal views into judgments or express their political preferences."
This was specifically relevant to Nicholson's remarks about
the need for an arms-deal inquiry *3 ("whether or
not one agrees") and Mbeki's reasons in sacking Zuma and standing for a third
terms as ANC president.
Nicholson is further criticised for making findings about a number of people
without hearing their side of the story. They include Mbeki, Maduna, Mabandla
and Ngcuka.
For exactly four months, Zuma's supporters in the ANC treated Nicholson's
judgement as the true gospel. On Monday the
"beautiful" judge was red-carded for taking his eyes off the ball, for changing
the rules of the game he knows best *4.
With acknowledgements to Adriaan Basson and Mail and Guardian.
*1This is because he didn't know
what he was doing.
*2A lot worse than that - corruption, bribery, tax evasion,
money laundering, racketeering.
Possibly a few more besides after the second wave of searches and seizures where
90 000 pages were taken.
*3I thought that this was about the only clever thing he
said.
This shows that even I can be wrong.
*4I think not.
Nicholson came from a background as an attorney in the labour relations field.
High court judges should be admitted advocates, preferably senior counsel, with
at least 15 years of directly applicable experience as a presiding judicial
offer.
Or 25 years for non-senior counsel, 35 years as magistrate with suitable
specialist training and courses (they offer these overseas and have tried to do
so here).
There's no room for "transformation", it's a simple matter of merit. The accused
and The People deserve the very best they can get.
In any case, post-revolution affirmative action is going into its 15th year -
that's enough time to do the standard 12 year school curriculum and a Bachelor
of Arts degree in Law degree.