/ 27 November 2008

Judgement day for Nicholson

In what has been called an activist judgement, Judge Chris Nicholson cleared the way for Jacob Zuma to become South Africa’s next president and indirectly put former president Thabo Mbeki in the dock.

On Friday the Supreme Court of Appeal (SCA) in Bloemfontein will hear submissions from the National Prosecuting Authority (NPA) on why Nicholson was wrong, in a case with major implications for Zuma, Mbeki, the ANC, the judiciary, the NPA and Nicholson himself.

Advocate Wim Trengove will argue that Nicholson’s interpretation of an accused person’s constitutional right to make representations to the NPA was flawed.

He will also attack Nicholson’s implication that Zuma was the victim of a political conspiracy — the finding that ultimately forced out Mbeki.

Zuma’s flamboyant senior counsel, Kemp J Kemp, will defend Nicholson’s interpretation of Zuma’s constitutional rights and argue that the judge’s comments about Mbeki were his opinion and not the crux of the appeal.

A ruling in Zuma’s favour would make his progress to the Union Buildings unstoppable.

But, if the SCA upholds the appeal, the NPA could recharge him immediately, denting his image, disrupting the ANC’s election campaign and setting the scene for more conflict between the party and the judiciary.

A successful appeal would severely test the ANC’s commitment to the rule of law and judicial independence. After a series of attacks on the ‘counter-revolutionary” courts by the ANC and its allies earlier this year, its youth wing began to describe Nicholson as ‘beautiful” and ‘sober” days before his ruling.

The ANC’s attitude to the judiciary is central to its battle with the Congress of the People.

Mbeki’s legal team will have 30 minutes to convince the SCA why he should be a party to the appeal against Nicholson’s judgement. He has already failed in an appeal to the Constitutional Court.

If the SCA strikes down Nicholson’s comments about Mbeki’s alleged interference in Zuma’s prosecution, it will vindicate the ex-president and his backers in the ruling alliance. But a confirmation of this aspect of the judgement will hugely embarrass Mbeki, who, throughout his career, has portrayed himself as a disciplined constitutionalist.

Also on the line is Nicholson’s reputation — his judgement has been widely criticised in legal circles as constitutionally flawed and going beyond the issues, and it has been suggested that he succumbed to political pressure.

For Zuma’s prosecutors this is a watershed case.

Confirmation that Zuma should have been allowed to make representations before being recharged in December 2007 would almost certainly spell the end of the NPA’s seven-year campaign to put him in the dock.

It could also open a floodgate of applications from thousands of accused people who were recharged and want their cases reviewed.

‘Every time the police find more evidence and the NPA want to recharge an accused, you will have people demanding to make representations,” a senior state advocate said this week.