Justice Serviced

"... this cancer that is devouring the body politic ..."

The court can hardly be unaware of the other dark mutterings emanating from the applicant that if he goes down others will follow him. Like a blinded Samson he threatens to make sure the temple collapses with him. The impression created is that the applicant has knowledge he will disclose if he is faced with conviction and sentence.

Nicholson J in Zuma JG vs National Director of Public Prosecutions

Sentletse Diakanyo's piece, Judge Nicholson leaves President Mbeki with no clothes on is the most level-headed and thought-provoking analysis I've read of Judge Chris Nicholson's setting aside, for procedural reasons, the case against Jacob Zuma. Diakanyo's detractors are legion but, as I always say in my courtroom, "Fuck 'em."

They obviously haven't read the judgement or are too dumb to realise the extent of the good judge's casuistry and slander of President Thabo Mbeki by inference and insinuation. Some excerpts below...

"The titanic political struggle between the applicant and the President is no concern of the court unless it impacts on issues to be decided in this application. The rivalry of the applicant and the President is hardly open to question and the polarization of the country into opposing camps before and after Polokwane is well known."

"At first blush a decision not to prosecute the Deputy President of the country appears to be as a favour to the second to highest ranking politician in the country. The applicant denies this and puts quite a different slant on the objective. He says it was all part of a political agenda that had as its objective the favouring of President Mbeki in his quest for a further term of office as ANC President. Those are allegations that the respondent seeks to strike out of the record. Is there any evidence of this?"

"The applicant maintains that the ultimate objective of the strategy was to prosecute Shaik and, when he was convicted, fire the applicant. ... So the applicant maintains that he was the big fish — if one were to continue this dubious metaphor — as the deputy president of the country and rival of the President in the race for the presidency of the ANC."

"The applicant does not suggest that the President was guilty of any corruption but suggests that the President is in possession of sufficient knowledge to clear the applicant." ... "The meetings with the Director-General in the Presidency could not, therefore, have been about the President’s involvement. Nor is there any suggestion that any crimes in connection with the arms deal were committed in the office of the President. The ongoing meetings could only relate to the complicity of the present applicant. These consultations with the office of the Presidency on the implied ongoing basis from February 2006 are also cause for concern given the constitutional imperative of independence."

"At the level of the most plausible inference, in the absence of any other competing one, it must be inferred that there was again political interference at the very time Mr Mpshe was contemplating charging the applicant. Mr Pikoli does not deal with the allegation that the issuing of the warrants against Selebi was not palatable to the President but the decision to prosecute the applicant was."

"The applicant states in his founding affidavit that after all these proceedings he and those who wished him to occupy a leadership role in the ANC ‘were concerned about the criminal charges being re-launched at all and moreover being launched at a critical time in the political process’. He goes further and suggests that this was a stratagem to cloak him in the guise of an accused at the critical moments in the political process and so hamper his election as ANC President. There does seem to be merit in that contention. I am therefore not inclined to strike out these allegations."

"The timing of the indictment by Mr Mpshe on 28 December 2007, after the President suffered a political defeat at Polokwane was most unfortunate. This factor, together with the suspension of Mr Pikoli, who was supposed to be independent and immune from executive interference, persuade me that the most plausible inference is that the baleful political influence was continuing. If the NDPP is to be totally independent and perform his functions without fear and favour he should not be liable to suspension by the executive at any given moment."

"It seems to me that in terms of the law, more especially emanating from the Constitution, there is responsibility attributable to the President and his cabinet for what Mr Maduna did. This would, of necessity, also apply to what Ms Mabandla did. I am therefore not convinced that the applicant was incorrect in averring political meddling in his prosecution."

"The court has gained the impression that all the machinations to which I have alluded form part of some great political contest or game. For years the applicant is under threat of prosecution for serious corruption and yet never brought to trial. There is a ring of the works of Kafka about this. In addition I have mentioned the applicant’s threats of disclosure should he go down."

If the good judge's takedown of Mbeki — for there seems to be merit in the contention that it is a takedown, was good enough for the ANC, why should it not be good enough for me?


"We will crush you ..."

I've not the time to write of this now, so Diakanyo's piece struck me as extraordinarily good fortune — especially in light of the ANC stating that Mbeki will "be pushed on (to) his sword if he can’t fall on his sword".

It would be logical to assume that the ANC, given this judgment and its unsavoury findings on the conduct of President Mbeki, may pass a motion of no confidence and seek to remove him from office. This move would be consistent with the decision taken by President Mbeki to relieve Zuma of his duties as deputy president of the country in 2005 following judgment on the criminal case involving Shabir Shaik.

However, such a move by the ANC would be ill-advised and inconsistent with Judge Nicholson’s pronouncement that a judgment in a criminal case against one party is not evidence against persons who were not parties to the proceedings. Therefore, matters raised in this particular judgment should not be used against those who were not party to the court proceedings, including the president.

The above pronouncement is evidence of the number of absurdities in the judgment passed by Judge Nicholson. Based on nonsensical inferences and no concrete evidence to support his claims, the judge concluded it seems improbable that President Mbeki could not have been party to the so-called political mechanisations that bedeviled the prosecution of Jacob Zuma from the onset. Judge Nicholson has certainly been mischievous for repeating what he was critical of, by finding President Mbeki in absentia, guilty of political interference in the prosecution of Zuma and undermining the independence of the NPA. [...]

In proving these "facts" the Judge made his own assumptions and relied on countless references to newspaper articles, statements and comments by made by certain individuals under no oath. The judge used personal opinions, without considering their possibility of bias or factualness, in making a determination of fact in his judgment. This is a dangerous thing for a judge of the High Court to resort to in proving a case against persons no party to the court proceedings; persons who were never afforded the opportunity to make representations on allegations relating to their conduct.

The judgment by Judge Nicholson on persons who were not given a chance to defend themselves in a court of law is “unfair and unjust”. Nothing contained in this judgment on question of political interference and violation of the independence of the NPA is a matter of fact, but pure assumptions that have always been the fuel in this conflagration of allegations of political conspiracy. The judge was reckless and irresponsible to have even entertained these nonsensical allegations, which Jacob Zuma had been unable to prove.

Sentletse Diakanyo | Judge Nicholson leaves President Mbeki with no clothes on

As for Zapiro? Well, what can one say that he does not?

"He [Malema] can insult me as I have insulted him and Zuma, no problem, but when he says 'we will shoot and kill you if you continue to write these things', that is a completely different order. That sounds like a real threat — the sound of those words is genuinely threatening".

Asked whether he was contemplating action, Shapiro said: "I'd be interested in speaking to people who know the legal stuff better than I do."

However, he would prefer for ANC leaders to really understand political satire and criticism.

Independent | Zapiro furious

Afterthoughts

A layman's reading of Judge Nicholson's judgment engenders confidence in its scope, detail, and studied application of the law. However, given the oft-conflicting nature of the law and justice, it has its downside, ultimately coming off as something of a Curate's Egg, a hurriedly written result of justice denied rather than justice served.

Had the good judge more time, he might well have written a more nuanced judgment wherein whatever bullshit is contained therein would have a better chance of baffling brains.

As it stands, there are too many paradoxes deriving from both Nicholson's sometimes apparent chosen adherence to the letter of the law and his, at other times, tortuously contrived arguments to fit the law to suit the judgment or deliver a political message, i.e. Thabo's to blame. Nicholson's juristic elasticity lends the judgment to differing interpretations and, for this reason — and informed individual responses to it, makes it a "must read".

To my uninformed mind, our arbiter and dispenser of justice has applied his legal mind to a wide range of jurisprudence and factors contributing to an assessment of the justness or otherwise of the manner in which charges were brought against Jacob Zuma, and his judgment is framed by the politics of the past ten years as well as his selectively careful definition of the law as it applied then and now.

However, in the interest of balance, reaching back mindfully to all related past events calls for an equally careful and mindful assessment of the wide implications of any finding, i.e. will justice be served? In judging the case as he did, Nicholson J appears to have missed the mark.

South Africa remains a young democracy governed by a party prone to generating legislation it cannot manage or execute. Our politicians are, to put it mildly, callow in qualification and cannot be presumed to be fully aware of the deep and delicate nature of their responsibilities. As a result, politics and impartiality are antithetical to each other. A political appointee to the office of National Director of Public Prosecutions (NDPP), charged with impartiality by law, cannot but be or behave as a political appointee.

The National Prosecuting Authority forms part of the state's executive arm and is subject to all that affects legislative and executive organs of government. To demand of the NDPP an impartiality — in law rather than spirit — of a type enjoyed by those ensconced in an independent judiciary subject to its own checks and balances, stretches credulity.

"Fear", "favour", and "prejudice" are, when all is said and done, highly subjective terms.

The DNPP can only be as impartial as his office allows him to be. In this sense, the law (the Attorney-General Act and the Criminal Procedure Act) — rather than any Director of Public Prosecutions, provincial or national, must be found wanting.

More, the president is at liberty to hire or fire the NDPP and that liberty is not, as far as I know, contingent only on the DPP's partiality or lack thereof. Constrained by and serving the law and the Constitution, the president felt it necessary to fire two and hire three NDPPs during the time Zuma stood to be prosecuted for alleged criminality. That Ngcuka and Pikoli, their reputations intact, were ousted for political reasons probably goes without saying. Theirs is, when all is said and done, a political office.

Given the uncertainty of their positions, I find Nicholson's repudiation of the NDPPs' close, consultative relationships and consultations with the president and his ministers of justice to be somewhat disingenuous.

More, the judgment has less to do with the administration of prosecutorial proceedings than it does with an unrelated, seemingly contrived Machiavellian plot on the part of the president. That this plot supposedly stretches back some ten years and has yet to be shown to have any substance (Zuma has certainly tried to lend it some) seems of little consequence to the judge. He adheres to its purported reality, even in contradiction.

Where he finds the NDPP to be impartial, he finds for Zuma that the president and his ministers were manipulating events. Where he finds the NDPP to be in collusion with the ministers, he assents to Zuma's argument that the president was pulling their strings. In essence, given the impartiality demanded by Nicholson J and accepting that the NDPP is not allowed a position similar to that afforded Schrödinger’s cat, a prosecution of Jacob Zuma is well nigh impossible.

Quoting Judge Brandeis, Nicholson J has delivered a finding worthy of Judge Scalia. For as long as government is involved in the prosecutorial process, it seems Jacob Zuma will have his way.

Then again, my and Sentletse's ill-informed readings of Judge Nicholson's judgment probably leave much to be desired. Even so, surely we (and thousands of others) cannot both be pulling this stuff off the top of our heads. This appears to be a judgment in dire need of leave to appeal.

Guy Berger writes in the Daily Dispatch: "While the Zuma camp has indeed threatened the justice system, that has not been its only approach. Zuma himself has shown some respect for the system by using its legal channels to contest his prosecution."

I disagree. Strategy employs many tactics — especially when you and I are paying for it. As Judge Nicholson might opine: The findings of earlier courts was not palatable to the ANC President but Nicholson J's decision to not prosecute the applicant was.

And here's an excellent op-ed by Michael Morris:

The cause of democracy has not been served by Nicholson. Certainly, the incoming regime will be extremely grateful for this judgment, for it lets them wholly off the hook.

If Nicholson sought to defend the judiciary and judicial system against current political interference, he should not have left it, as Zapiro has so presciently portrayed it, still spreadeagled on the ground, wide open to further assault in the future.

Instead, Nicholson's judgment has eschewed the real act of historical courage, of rising to the political and historical moment.

And we, the populace — who do really care about the vision we struggled for under apartheid and which was held up by the Mandela era — are left to face the consequences.

Independent | Judge has 'left system open to future abuse'

Considered judgement

A week down the line, the ANC's NEC is deliberating the South African president's future. The jury will, it's reported, return its verdict late tonight or tomorrow morning. During the week, James Myburgh of politicsweb applied his not inconsiderable mind to the question of Judge Chris Nicholson's High Court ruling in favour of our soon-to-be president, Jacob G. Zuma. The result is A Trojan Horse judgment?, an essay dissecting the minutiae and implications of Nicholson's judgement. It is an excellent piece of journalism. Myburgh contends:

For all his talk about the need to insulate the NPA from political meddling the Nicholson judgment is likely, in hard political terms, to have the opposite effect. ... It is in the interests of the corrupt elements in both the Zuma and Mbeki camps for the circle of impunity to be rejoined. Nicholson's attack on the credibility of the NPA has greatly weakened the organisation, and made it more (not less) open to political attack and interference. It has also struck a huge blow against the professionals who, against extraordinary odds, have tried to ensure that not even the top ANC leadership are above the law.

Driving home this afternoon, I listened to former Judge Willem Heath, the highly respected former head of the Scorpions' predecessor, the Heath Commission, slam the NPA for considering requesting leave to appeal Nicholson's extraordinarily 'political' judgement. A commenter, unfavourably disposed to Myburgh's analysis of the court's finding, makes much of Heath backing Nicholson's judgement. The commenter should bear in mind that Willem Heath is a former judge. He has, for four years and by his stated admission, been paid to advise Mr. J. G. Zuma.

Many thanks to surfer, film-maker, freelance socio-political commentator and all-round good guy Hugh du Toit for the link to James's article.