While I respect the ruling of Judge Louis Harms, which overturned the judgement ending the case against ANC president Jacob Zuma, I believe it sets in stone a dictum of conservative judicial restraint when our Constitution encourages activism.

Judicial restraint encourages judges to limit the exercise of their power, to avoid striking down laws and to defer to the legislature while upholding precedents, according to one definition.

Harms’s judgement is considered to be one of conservative judicial restraint, which avoided the responsibility of the court to act against the perceived abuse of executive power.

Judicial activism, on the other hand, sees the court as a proactive instrument to advance the values of the Constitution in its interpretation of the law and in making new laws; elegantly described by Justice JS Verma, a former Supreme Court judge from India, as “a sharp-edged tool, which has to be used as a scalpel by a skilful surgeon to cure the malady. Not as a Rampuri knife which can kill.”

The aim of progressive judicial activism is to bring justice and human dignity closer to those whose rights have been ignored, violated or abused *1, especially by the action or inaction of the executive. Progressive judicial activism forces the obligation on the courts to enhance the values of the Constitution beyond the mere interpretation of words or application of rules and precedent in the pursuit of justice. It argues that judges cannot close their eyes to the reality in which legal disputes occur and that there is no such thing as neutral justice. To believe that the dogmatic adherence to rules and precedents leads to justice is to believe that the earth is flat. Judge Chris Nicholson’s approach should thus be more correctly described as progressive judicial activism.

Our Constitution promotes progressive judicial activism and empowers our courts with the inherent authority to develop common law taking into account the interests of justice.

Justice Craig Howie, the past ex-president of the Supreme Court of Appeal, speaking at a legal conference in 2005 said: “… the courts are at large, and indeed the last resort, when executive action threatens personal liberty. It will be for the courts, if necessary by fearless independent and innovative law-making, to give effect to their constitutional role as upholders of the Constitution and the ultimate arbiters as to its meaning. If that were to be called activist, so be it. It would be nothing less than their duty.”

The “activist” Judge Nicholson should take warm comfort from these words, while the SCA and Judge Harms should reflect upon their meaning and relevance.

As such, it is difficult to accept Judge Harms’s arguments: that motives of executive action matter not, that possible executive interference in other cases matters not, that the independence of the National Prosecuting Authority in the performance of its functions may have limits or that a prosecution is not wrongful merely because it is brought for an improper purpose. In the end Harms’s reasoning may prevail because of the special place that legal technicalities and precedents occupy in the law. But the contradiction is glaring and it is this: should the legal precedents established in a different and oppressive period of our society’s history shape the legal outcomes in our democratic era, and if so, is this what our Constitution intended?

For many of us there is a disquieting feeling that the interests of justice have not been served. The clash of legal paradigms unfolding in our courts is also a clash of visions of social justice, social origin, conscience, belief and culture. It is a clash that this judicial war cannot resolve and whose solution lies in a better understanding of our transition and the price that individuals, such as Zuma and others, had to pay for the common good.

Whatever purpose the persecution of Zuma by investigation and prosecution *2 served in the past, we need to accept that it now serves neither the national interest nor the interest of justice *3. This tragic chapter of our history needs to be brought to an end by the adoption of a truth-seeking rather than conviction-seeking approach. The mature and considered approach adopted by the NPA in the wake of Harms’s finding is encouraging *4 and one can only but hope that Zuma’s representation to them will be satisfactory and successful.

Many believe in Zuma’s innocence *5 and remain committed to his leadership. He has repeatedly demonstrated a profound understanding of the challenges that confront South Africa. He is one of those rare leaders who are aware that their real legacy lies not in how long they remain in power, but how effectively they manage the transfer of power to the next generation.

The challenges that face us are many, made worse by the legacy of apartheid and the service delivery inefficiencies of the democratic era. The period ahead is going to be difficult and a country at judicial war with itself *6 will not prosper. Yet, at the same time, there is the potential of hope following our election later this year.

With acknowledgements to Moe Shaik and Mail and Guardian.