Former Legal Resources Centre (LRC) director and KwaZulu-Natal Judge Chris Nicholson appears to be an early front-runner to hear the explosive Jacob Zuma corruption case, set down for next July.
Law professionals, in what is still officially the Natal Division, say Nicholson’s name is frequently cited among the judges in the division who are seen as sufficiently senior to try the case.
Given the criticism of Judge Hilary Squires’s judgement in the Schabir Shaik Case — most of it based on his Rhodesian background, rather than on whether the finding was legally correct — they said the Zuma trial judge would have to have a thick skin to ignore the political pressures.
There is talk that judges are reluctant to put their names forward for the case.
Some lawyers in the province believe the division’s Judge President, Vuka Tshabalala, will appoint a retired judge, as he did in the Shaik case. One of the names mentioned was that of Ramon Leon, Democratic Alliance leader, Tony Leon’s father.
Sceptics pointed out that he had a reputation as a hanging judge during his stint on the Bench, and that he had been tainted by imposing the death penalty on the “Amanzimtoti bomber”, Andrew Zondo.
“He did have that reputation, but in his favour is the fact that for him the law was lord,” said an experienced Durban lawyer who asked not to be named.
Leon’s decisions were generally correct in terms of Roman-Dutch law, even if they were unpopular. With the Constitution now the supreme law, the lawyer said Leon would base his decisions on its provisions.
Tshabalala dismissed the speculation. “I have not given it a thought. It is still a long way off — next July. I will decide when the time comes. I have not heard that judges are reluctant to take the case because I have not discussed it with anyone.”
He said he would not be influenced in his decision by the status of the accused. “All judges are capable of deciding any case,” he said.
According to another Durban lawyer, the choice is not as distant as the judge president suggests.
He said: “Ordinarily the court rosters are prepared two terms in advance. Judges will know whether they are doing civil or criminal work for the next two terms.”
Another judge in the division, Judge Jan Hugo, is also considered sufficiently senior. However he labours under the disadvantage of being a pre-1994 judge.
He was also on the bench in the 1996 “KwaMakutha trial”, in which former apartheid era defence minister Magnus Malan and nine others were acquitted of the murder of 13 people by security forces.
Lawyers who favour Judge Hugo for the Zuma case are emphasising that Judge Nicholson is left-leaning and worked at the LRC, a civil rights law NGO with a distinguished anti-apartheid record.
He has published a book, titled Cradock Four: Permanent Removal, about the June 1985 assassination of four Eastern Cape anti-apartheid activists, and has also written about Papwa Sewgolum, the black golfer denied recognition under apartheid because of his race.
A senior counsel in Durban told the Mail & Guardian that the decision about who would try the Zuma case was likely to be the most important the judge president would ever make.
“It is not only Zuma who is on trial but our justice system as a whole, and public perceptions of it.
“The justice system should be protected as much as our democracy. There should be no reasonable doubt in the minds of the people that Zuma got a fair trial and that justice was not manipulated in any way.”
For those reasons, Judges Hugo and Leon would not be appropriate choices.
“Some people may say that a judge who acquitted Malan will obviously convict Zuma. In any case, a judge should not have to preside over too many high-profile cases.”
Said the senior counsel: “From the day that the judge is named, the perception is going to be created that this is another scheme to ensure a particular result. It is not only the result, but the public perception of how that result was achieved, that matters.”