Two recent high court judgements raise the question of whether a new form of judicial activism is manifesting itself in our jurisprudence. Both cases are high-profile matters that have enjoyed wide publicity for other reasons.
In the Jacob Zuma vs the National Prosecuting Authority (NPA) matter, Judge Chris Nicholson pleaded for the appointment of a judicial commission of inquiry into alleged arms-deal corruption in eloquent and well-reasoned terms. It is a call that has been made by institutions and individuals as disparate as church leaders, trade unions and opposition political parties. It is a call that is unlikely to be heeded by the president, who can frame suitable terms of reference and appoint a panel of retired judges to preside.
Their appointment — however necessary it may be to consider corruption and cancelling the arms deals — had only tangential relevance to the actual issues for determination in the case before Nicholson.
It arose in the context of an application to intervene as amicus curiae (friend of the court) and could have been dealt with in one sentence: ”The court does not have the right to appoint a commission of inquiry; that is the exclusive power of the president.”
Instead, the judgement dwells upon the need and desirability of the appointment of a commission, one which could recover R53-billion for taxpayers. The judge’s points are well made, though likely to fall on barren ground. But ought they to have been made at all?
The doctrine of the separation of powers suggests that it is not the function of the courts to advise or cajole the government in matters of this nature.
It is, after all, the job of the president to make the call, on a political basis. It is the function of the courts to apply the law and the Constitution without fear, favour or prejudice. Our judges are more like umpires than referees. They preside in litigation, both civil and criminal; the issues in any given case are presented to them by the litigants. They rule on these issues in each case that they are required to determine. This is how conflict in society — be it between state and individual or between citizens — is managed.
The second aspect of Nicholson’s judgement that may be described as activist is more problematic. It is the finding in the application to delete from the record Zuma’s allegations that he is the victim of illegal interference by politicians in the independent functioning of the NPA.
By accepting Zuma’s version and inferring from it that there was indeed a conspiracy against Zuma, the learned judge unintentionally but in effect brought down the Mbeki presidency and caused the resignation of some of his Cabinet, notably Aziz Pahad, who felt he could not in all good conscience continue in office while the finding stands.
It will be appealed, on 16 grounds, so there is a basis for arguing that the national executive committee of the ANC was opportunistic to latch on to the finding as a pretext for recalling Mbeki.
Somewhat inconsistently, it has thus far ignored Nicholson’s call for a commission of inquiry. Be that as it may, the part of the judgment that deals with the striking out of Zuma’s allegations that he is the victim of a political conspiracy is one which, in strictly legal terms, had to be written: the application was before the judge and had to be dealt with by him.
Some may argue that he could have avoided it, having found for Zuma on the main issue in the case, but Nicholson must have been aware of the high stakes in the case and of the likelihood of an appeal.
It was proper for him to deal with the merits of the application to enable the court on appeal to have his views on all issues placed before it.
The majority judgement in the case between embattled Cape Judge President John Hlophe and the justices of the Constitutional Court contains a further example of judicial activism.
The fallout from this dispute and the criticisms of the judiciary that followed it deserve mention. The name-calling and threats from many who should know better has been appalling. This part of the judgement could be construed as an ”appeal”, invoking section 165(4), to the organs of state constitutionally responsible for protecting the dignity and independence of the judiciary, to do something to assist, such as devising an exit plan for Hlophe, for example. If it is a cry for help, the likelihood is that it too will fall on deaf ears.
The Polokwane resolutions make it clear that control of the judiciary is an ANC goal. A judiciary weakened by infighting and public criticism is far easier to control. But anything less than an absolutely independent judiciary is fundamentally unconstitutional.
Paul Hoffman SC is the director of the Centre for Constitutional Rights
See the full judgements referred to at www.cfcr.org.za