It's time to judge the judges and the verdict isn't favourable.

The Schabir Shaik/Jacob Zuma legal process has always carried a genuine element of national peril in it. It represents a gigantic stick of legal and political dynamite being passed from court to court, but instead of treating the package with due care some judges seem intent on finding ways to make sure it explodes in all our faces.

I'm not referring to the law and its interpretation - that we must leave to those who are allegedly qualified for the highest benches. Nor is this about two courts disagreeing with each other, because the law is always vulnerable to individual interpretation and clever advocacy.

And let's agree that judges are allowed to be human and fallible - they're part of our society and not above it, and are equally subject to its manifold pressures and emotions - and it's important to acknowledge that, for all the presumptions of privilege, it's a tough task sitting in judgment on the fate of people and their livelihoods.

What I am grumbling about is the consistent lack of the kind of restraint, dignity, precision and, above all, caution that we are entitled to expect from judges.

Monday's judgment from the Supreme Court of Appeal left us in no doubt that Judge Chris Nicholson completely failed that test.

I suspect there isn't a lawyer in the country who is genuinely surprised that the NPA's appeal was upheld because Nicholson's findings against the prosecuting authority in the Pietermaritzburg High Court were breathtaking in their lack of respect for conventional legal boundaries.

His judgment read more like a newspaper opinion piece as he made sweeping assessments of people and matters he never heard substantive evidence on. While many might agree with his calls for an inquiry into the arms deal or his belief that Thabo Mbeki and others had meddled in the NPA, these palpably were not matters he needed to determine or pronounce upon.

I'm sure he believed he was doing the right thing in some broad interpretation of an "activist" judiciary but surely this case demanded kid gloves, not boxing ones?

The Supreme Court of Appeals hasn't covered itself in glory either.

The five judges were clearly disturbed by Nicholson's judgment and wanted to set the record straight but did they really need to resort to such damaging language?

Acting Deputy President Louis Harms, speaking on their behalf, described Nicholson as "the learned judge" but then proceeded to demolish and even humiliate him without a semblance of respect.

Surely the system, and our confidence in it, would have been better served by a simple correction of the key point of law - whether the NPA needed to invite a submission from Zuma before prosecuting - followed by a firm setting of the boundaries for future judges? The extra putting-in of the boot makes the rest of us doubt the sensibilities of the people involved. Are they fit to handle a matter of such delicacy?

An ounce of humility also wouldn't have gone astray because the Supreme Court has made at least one serious mistake during this saga. Two years ago the court erroneously attributed the infamous expression "a generally corrupt relationship" between Zuma and Shaik to Judge Hilary Squires, when he had never used it.

And, even deeper in the past *1, Harms is the man whose 1990 judicial commission managed to miss the existence of CCB death squads in spite of stark evidence to the contrary. The TRC described the commission as "worthless" and Harms's performance in that role still causes many lawyers to shake their heads.

Elsewhere in the judiciary the track record isn't much better. Remember Cape Judge President John Hlophe crashing around the Constitutional Court  *2 offering uninvited views on matters related to a Zuma case and the subsequent clumsiness of the response from Chief Justice Pius Langa and colleagues? That mess remains unresolved.

The judicial system is under immense pressure from Zuma and probably will remain so for some time yet. With their bottomless taxpayer-funded resources, the ANC president's lawyers will continue to probe every possible legal avenue.

Judges are in for a tough time but they will only have our sympathy if they can revert to being balanced and methodical. We cannot afford rashness, rhetorical flourishes and intemperate behaviour.

In short, judges need to become boring once again.

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"Squires spoke of a “mutually beneficial symbiosis that the evidence shows existed” and of payments to Zuma by Shaik that “can only have generated a sense of obligation in the recipient”.
 

Had the phrase “a generally corrupt relationship” been used by the media without the quotation marks, attributed indirectly to Squires as a summary of his central findings, there would have been no cause for complaint. The power of punctuation apparently surpasses the might of both pen and sword. "

 

For a minor error is a lifetime of humility required?

It might be the same court, but is it the same judges?

Then it was Howie P, Mpati DP, Streicher J, Navsa J and Heher JJA.


In any case this is what the SCA judgment actually said :

While the trial judge did not use the phrase ‘a generally corrupt relationship’, it was used by the trial court during proceedings.

The SCA's made a mistake, but it is actually less than what was propagated at the time.

It was a storm in a tea cup.

On the other hand, Nicholson's judgment is one of the worst ever seen in the history of South African jurisprudence.


On the matter of the hit squads, Harms explains that he was lied to by certain witnesses at the commission. Unfortunately this is what can happen at commissions. The commissioner cannot normally start accusing the witness of lying unless this is clear from other facts before him. It's up to others to procure the right witnesses and the cross-examiners to extract the truth from them.

Merely by stating that some "shake their heads" is actually casting not properly founded negative aspersions against the judge behind the cover of non-defamatory language.


*2      This sounds like an irrelevant point in this particular argument.

In fact it sounds just like a newspaper opinion piece.

10% fact, 10% valid and 80% bullshit.