Letters Correspondent

Having read the opinion and analysis pieces, The importance of the Nicholson judgment, and Making the case for judicial activism (January 20), as an advocate I wish to point out the following:

First, as stated by our chief justice, while it is expected that judgments would be subject to public scrutiny, such scrutiny should be fair and reasonable and not impugn the dignity and integrity of judges. Comments from African National Congress leaders that our judiciary is “counter-revolutionary” simply because they do not like the outcome, are irresponsible and violate this principle of judicial criticism.

Second, while the principle of judicial activism is ­ in appropriate circumstances ­ highly desirable, the demeaning of a head of state, alluding to conspiracies and making a series of findings well beyond any evidence led by the parties in the Jacob Zuma versus National Prosecuting Authority (NPA) application, hardly falls into the category of “appropriate circumstances”.

Third, dealing briefly with the procedural issues of the Zuma and NPA matter, it must be noted that the matter was brought before the high court in Pietermaritzburg on the basis of application proceedings. This procedure consists of the parties having to make all representations and submissions by way of affidavits only. At the hearing of the matter, counsel for the parties may make submissions but no oral evidence is led.

Should the judge be of the opinion that there exist such disputes of fact or necessary facts that are not contained in the papers before the judge to enable a judgment, then the matter ought, in accordance with the rules of the high court and long-established practice, be referred to oral evidence whereby relevant parties can be subpoenaed and oral evidence heard, documents produced and all of this evidence be subject to the rigours of cross examination in order to establish the truth.

Fourth, to permit judicial activism in application proceedings absent recourse to available remedies such as referral to oral evidence, would as stated by our Supreme Court of Appeal, lead to a dangerous precedent.

Fifth, that our law reports are replete with decisions concerning Zuma and the NPA and the matter is no closer to resolution, is a searing indictment on Zuma for contradicting his often-stated desire to have his day in court and clear his name by refuting the charges against him. The correct place to determine the admissibility or otherwise of evidence or guilt or otherwise, is at the trial court.

The question all South Africans want answered is why has everything been done to avoid such a trial and disclosure of all relevant facts *1, including the issues raised by Judge Nicholson concerning executive interference in judicial process. Perhaps we will never know.

J Berdou
Sandton

With acknowledgements to J. Berdou and Business Day.