Dangers of judicial activism

Judge Chris Nicholson is one of those judges who tries to determine (on the available facts) in which direction justice lies and then to see if the technicalities of the law can support such an outcome. There is a respectable pedigree to such an approach, particularly during the apartheid era, when some judges tried to find legal ways to get around unjust laws.

Even now, such an approach can be a shield (for the accused) with regard to the unjust implementation of law—and it can be a support to the state in cases where the resources of investigation and prosecution are not really up to the task.

But there are dangers to such judicial activism.
It can tempt judges to give to mere opinion the cloak of judicial certitude. It can stretch the fabric of fact, inference and case law to the point where there are gaps large enough for the unscrupulous or the incompetent to exploit. The question is: was this such a judgement?

At first glance it might appear so.

The central question of the judgement was whether the decision to charge Jacob Zuma in 2005, following the conviction of Schabir Shaik, and the decision to recharge him in December 2007, were reviews of the earlier decision not to charge him. Nicholson’s view was that they were.

In doing so he appears to be attributing a far broader interpretation to the circumstances where the national director of public prosecutions carries out a review. Up to now the conventional understanding has been that such a review takes place only when the national director reconsiders the decision of a subordinate. Indeed, as Nicholson points out, that was the genesis of the provision: to put in place checks and balances so the national director would not have unfettered power to intervene and change decisions to prosecute or not to prosecute.

How does that relate to previous decisions by the national director himself? It seems contrary to the intention of the legislature. It also appears to be a stretch to argue that the very clean slate that acting national director Mokotedi Mpshe brought to the 2007 decision to prosecute Zuma constituted a review of the original decision by Bulelani Ngcuka not to prosecute.

But there is a lacuna in the wording of the National Prosecuting Authority Act that gives powerful support to Nicholson in this interpretation. The Act gives the right to institute prosecutions only to deputy national directors and directors of public prosecution. They do this subject to the “control and directions” of the national director. Only section 22(9) of the Act gives the national director the power to institute and conduct a prosecution in any court in the republic “in person”.

Nicholson interprets these provisions to mean that the national director may involve himself only in setting prosecution policy and checking that it is implemented properly by his subordinates. This means that, outside of the circumstances of conducting a prosecution himself, the only way the national director may involve himself in a decision to prosecute or not is via a review of a decision by a subordinate—which, according to the legi­slation, necessitates consultation with the accused.

Up to now it does not appear the national director has worked this way. When Ngcuka announced the decision to charge Shaik and not to charge Zuma, he clearly indicated he had taken the decision in conjunction with the deputy national director in charge of the Scorpions, Leonard McCarthy—and no one, not even Zuma, challenged his right to do that.

If Nicholson’s interpretation is correct, then other high-profile cases where the national director has effectively taken the decision may have to be reconsidered—such as in the case of Jackie Selebi. And Parliament may have to clarify its intention around circumstances under which the national director may himself initiate prosecutions.

So much for the technical side of the judgement. What Nicholson has also done is consider the evidence of political interference and the conduct of both President Thabo Mbeki and the ministers of justice in this matter.

In the case of former justice minister Penuell Maduna there seems to be some basis for Nicholson’s criticisms. Maduna’s involvement in Ngcuka’s decision about Zuma appears to have gone beyond merely the provision of information to the minister. Indeed Maduna was deeply involved in some of the prosecutorial negotiations with Shaik’s initial co-accused, the French arms company, Thint.

The judgement (PDF)

Read Judge Chris Nicholson’s full judgement

But Nicholson does not emphasise clearly enough that his findings are purely on the basis of the level of proof required to consider allegations of political interference in Zuma’s papers—not to strike them out, as the NPA had demanded.

As a number of commentators have pointed out, Nicholson’s findings against Mbeki and Maduna are essentially in the absence of hearing their side—as were the adverse conclusions drawn about Zuma in the Shaik trial. Zuma’s supporters, who have consistently criticised such inferences in Zuma’s case, cannot have it both ways.

Where Nicholson does seem to have overstepped the bounds of judicial activism is where he decries Zuma’s firing as “unfair and unjust”, saying not even a lowly employee could have been legally fired on the basis of proceedings to which he was not a party.

That was a mistake. Cabinet members—and the deputy president—serve at the pleasure of the president. There may be all sorts of political reasons why the president may wish to dismiss them and Nicholson should not have suggested his powers to do so need to be exercised fairly or justly. That is not how politics works.

Nicholson also appears to infer ongoing political interference in the Zuma case, by virtue of actions by the president and Justice Minister Brigitte Mabandla in the case against Jackie Selebi. There appears to be no evidence to back up such a conclusion, except as far as suggesting it may have created a general atmosphere of intimidation that could have tainted Mpshe’s decision to recharge Zuma. But then the same is true of Nicholson’s judgement itself, in the light of the atmosphere of intimidation created by Zuma’s supporters.

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