A number of previous columns have noted the threat the Jacob Zuma case has held for key institutions of the Constitution—the National Prosecuting Authority, the Scorpions, the judiciary, the press including its cartoonists, all of whom have been put under the populist cosh during this long-running saga.
When Judge Louis Harms delivered a unanimous decision on behalf of five members of the Supreme Court of Appeal (SCA) last week, further victims were added to the list, in particular the reputations of the judge in the lower court, Judge Chris Nicholson, and the advocate for Zuma, Kemp J Kemp, both of whom were lavishly showered with press praise after the Nicholson judgement was delivered.
Harms used terms such as saying Nicholson had ‘— red-carded not only players but also spectators”, remarked that judges ‘are not entitled to inject their personal opinions into judgements or express their political preferences” and found that former president Thabo Mbeki and other members of government had serious aspersions cast upon them without regard for their basic rights.
The SCA further criticised the Nicholson judgement for committing basic mistakes in the evaluation of evidence on affidavit, noted that it had created factual disputes that never existed and failed to distinguish between fact, allegation and suspicion.
In short the SCA judges found that Nicholson had strayed way beyond the scope of his judicial authority, had decided upon issues that had not even been argued by the Zuma team and had failed to follow basic rules of evidence.
In addition the SCA held that he had mistakenly interpreted section 179 of the Constitution by concluding that Zuma had a right to be heard by the National Director of Public Prosecutions (NDPP) before being charged in December 2007. The SCA held that the Constitution imposed no such obligation on the NDPP, although nothing prevented Zuma from making representations.
It also held that there was no evidential basis provided by Zuma as to why he had a legitimate expectation to be heard by the NDPP prior to being charged in December 2007. Even if the constitutional argument had succeeded, the fresh charge brought by NDPP Mokotedi Mpshe rendered section 179 inapplicable; hence, on the facts, the Zuma application was fatally flawed.
Likewise, Kemp was not spared criticism. He had ‘scuppered the case” with his argument in court, said the SCA; much of his argument was, in effect, incomprehensible or very difficult to understand, and it shifted like a movable feast under pressure from the SCA judges during oral argument and the founding papers were a ‘cut and paste job”.
The criticisms of Kemp are hardly serious in the grand scheme of things, save to warn overenthusiastic journalists about exercising care in their evaluation of counsel. But the approach adopted to Nicholson is of a different order.
Much has been said of the way he eschewed judicial minimalism when he wrote his judgement. He could have found that section 179 of the Constitution afforded Zuma a right to be heard, that this right had been breached by the NPA, that the application thus succeeded and questions of an alleged conspiracy against Zuma were irrelevant and did not require further discussion—a point made forcibly by the SCA. But why then did the SCA not do the same: that is, uphold the appeal on the legal point and ignore the vast sections of the judgement dealing with a conspiracy?
The SCA took the view that there was a need to remind high court judges of their role in dealing with applications and their obligation to give party politics a wide berth. But, by doing so, it publicly called into question the performance of a senior judge who, previously, had a well-deserved fine reputation. Of course judges are accountable to the law and the appeal structure is an important component of the mechanisms to ensure accountability. But was the maximum public rebuke necessary? Has there ever been so sustained and fundamental a criticism of a judge in the performance of his duty? The SCA clearly considered that Nicholson’s totally flawed approach to such an application could not be ignored and needed correction.
Beyond the judiciary, another issue is worthy of analysis: the future of the Zuma prosecution. Perhaps the rumours of a plea bargain and the imposition of a non-custodial sentence, which surfaced before judgement day, will prove correct. But the SCA held that, in the light of the Shaik trial and further evidence gathered by the NPA, the NDPP had little option but to charge Zuma with the crimes contained in the charge sheet.
That observation will surely be used to argue that the only recourse is for the law to take its course and for the trial court to assess the validity of these charges. But, in the light of so much damage already caused, a plea bargain would, at the very least, be a legal option and may prove the most pragmatic solution. After the SCA judgement, even that modest conclusion may prove a bridge too far.