/ 12 January 2009

Judge Nicholson red-carded by SCA

The Supreme Court of Appeal on Monday overturned Judge Chris Nicholson's ruling dismissing corruption charges against ANC president Jacob Zuma.

Read the full judgement

For four months he was the African National Congress’s (ANC) darling — the ”beautiful” judge who had the balls to speak truth to former president Thabo Mbeki’s political meddling in Jacob Zuma’s corruption case.

On Monday Judge Chris Nicholson’s career took an Olympic-sized plunge, with speculation already rife as to whether he would remain on the KwaZulu-Natal bench.

A unanimous Supreme Court of Appeal (SCA) bench, led by overwrought deputy president Judge Louis Harms, dismissed Nicholson’s Zuma judgement with contempt, dedicating an entire section in the judgement to ”The Judicial Function”, which basically tells Nicholson he didn’t know what he was doing.

After delivering his scathing ruling in September, Nicholson was lauded as an activist judge who, in the true tradition of the KwaZulu-Natal bench, went beyond his call of duty to put South Africa back on track after years of political conniving in Zuma’s prosecution.

He slated Mbeki and his Cabinet for meddling in Zuma’s trial and accused three consecutive national directors of public prosecutions of wrongdoing.

On Monday, Harms erased all of that with one thick stroke, putting an abrupt end to the ANC’s short-lived euphoria after Nicholson’s judgement. It was, after all, a dream ruling for the ruling party, which now faces the real possibility of going into the 2009 elections with a fraud suspect at its helm.

But although Zuma was on the losing side this time and will now have to go through another series of court appearances, it is Nicholson who stands bruised and battered after Harms’s scornful ruling.

Judges Ian Farlam, Azhar Cachalia, Mandisa Maya and Nathan Ponnan all agreed that he was wrong to declare the charges against Zuma unlawful.

Nicholson ruled that Zuma should have been given the opportunity to make representations to acting National Prosecuting Authority (NPA) boss Mokotedi Mpshe before being recharged.

It was, however, not this part of Nicholson’s ruling that attracted the biggest amount of scorn, but his from-the-hip comments about Mbeki, former justice ministers Penuell Maduna and Brigitte Mabandla, and former NPA bosses Bulelani Ngcuka and Vusi Pikoli.

Under ”The Judicial Function”, Harms lectures Nicholson on the functions of a judge. ”It is crucial to provide an exposition of the functions of a judicial officer because, for reasons that are impossible to fathom, the court below failed to adhere to some basic tenets, in particular that in exercising the judicial function judges are themselves constrained by the law.”

Nicholson was correct to assert the judiciary’s independence, but then went off the rails.

”This commendable approach was unfortunately subverted by a failure to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions.”

The SCA found that Nicholson let his personal opinion on matters cloud his judgement.

”Judges as members of civil society are entitled to hold views about issues of the day and they may express their views provided they do not compromise their judicial office. But they are not entitled to inject their personal views into judgments or express their political preferences.”

This was specifically relevant to Nicholson’s remarks about the need for an arms-deal inquiry (”whether or not one agrees”) and Mbeki’s reasons in sacking Zuma and standing for a third terms as ANC president.

Nicholson is further criticised for making findings about a number of people without hearing their side of the story. They include Mbeki, Maduna, Mabandla and Ngcuka.

For exactly four months, Zuma’s supporters in the ANC treated Nicholson’s judgement as the true gospel. On Monday the ”beautiful” judge was red-carded for taking his eyes off the ball, for changing the rules of the game he knows best.