An “activist” judgment?

The first rumblings are being heard about the judgment handed down last Friday by judge Chris Nicholson in which he found that the NPA should have afforded Mr Jacob Zuma the opportunity to be heard before he was re-charged. Mr Zuma’s supporters might well interpret criticism of the judgment as sour grapes or as more evidence that they are not the only one’s to undermine respect for and the independence of the judiciary through criticism and threats.

But there is of course a huge difference between informed and principled criticism of judgments on the one hand, and personal attacks on the politics of certain judges or threats against the judiciary on the other. So there is nothing wrong with dissecting the Nicholson judgment to see whether an appeal court may not come to a different conclusion. When doing so, critics must be careful though not to suggest that the decision was taken for expedient political reasons.

An analysis in today’s Business Day skirts close to the edge on this score. The article notes as follows:

The legal experts suggested that the reason Nicholson decided to take this interventionist route was in order to find a clear-cut legal solution to a political dilemma crippling the country and threatening the independence of the judiciary.

This was the question of whether the corruption trial against Zuma should go ahead or whether a “political solution” should be found to allow Zuma to assume the role of president without criminal charges hanging over him. Opponents of this approach said it would fatally undermine the rule of law.

The legal experts said the judgment could be understood as a very pragmatic intervention by the judiciary to “make the Zuma trial go away” in order to protect its independence and ensure that it retained the power to intervene in other matters. “If there is a fight between the ANC and judiciary to the bitter end there can only be one winner and that won’t be the judiciary,” one said.

The lawyer said that for short-term political reasons the judgment was clearly good “because it puts a stop to what was becoming very ugly and at least it is a judge who does it, not politicians, and that is probably the best way out”.

“The judicial system has put a stop to the whole trial, which is good and good for the judiciary. The fact that it was a white judge may start getting people to think that the output of the judiciary is not entirely determined by race. Transformation of the bench is a much more complicated matter than the necessary but not sufficient condition of race,” he said.

As someone who really thought the judgment would go the other way – based on the text of the Constitution and the NPA Act – I might not be the best person to evaluate the correctness of the legal arguments in the judgment, but one or two legal moves by judge Nicholson will definitely raise eyebrows amongst those legal eagles who closely follow this kind of thing.

Judge Nicholson found that the decision to prosecute Mr Zuma must be assumed to have been taken by the Scorpions – although the National Director of Public prosecutions (NDPP) clearly was involved with this decision. This is because if the NDPP “was to properly exercise” his powers to review decisions by Provincial Directors of Public prosecution to prosecute or not prosecute anyone, it must be assumed that he did not take part in this decision – otherwise it would nulify his independence required to review the decision later.

This is quite a dexterous and innovative deployment of legal logic to get to where the judge wants to go, and I am not sure a higher court will come to the same conclusion. This is because his “finding” is clearly contradicted by the actual facts as the NDPP did make the decision to prosecute Mr Zuma.

Secondly, because the NPA Act was drafted before the creation of the Scorpions, it does not mention the right of the accused to make representations to the NDPP in the event of him reviewing the decision by the head of the Scorpions or in the event of him reviewing an earlier decision by himself or his predecessor. According to judge Nicholson this was self-contradictory and even absurd because the crimes investigated by the Scorpions are often far more serious than those prosecuted by the Provincial DPP’s.

Even where the original decision was made by the NDPP himself, it would be absurd if a later decision to prosecute or not to prosecute was also not subject to the requirement to afford the accused the opportunity to make representations for the same reasons that the NDPP would only get involved in original decisions of this kind in situations where very serious crimes are involved.

Judge Nicholson therefore read words into the NPA Act to change the meaning of the Act so that from now on whenever the NDPP or the Deputy NDPP (like the one heading the Scorpions) review a decision to prosecute, the accused will also have a right to make representations before a decision is taken.

This is a rather bizarre application of the remedy of reading-in.  The Constitutional Court developed this remedy and has only ever used it in cases where it was found  that there was a clear breach of the Constitution. Only then does it consider whether an appropriate remedy for a breach of the rights of an individual might not be to read words into the Act to remedy the defect in the Act.

But in this judgment words were read into the Act without such a finding of a clear breach of the rights of an accused. It therefore seems to me that judge Nicholson completely overreached in making this move. If his precedent is followed, a judge could read words into any act that seemed contradictory or strange – even where no breach of the Constitution was found. This, to my mind, would pose some serious threats to the principle of separation of powers as it would in effect give the judiciary legislative powers to change legislation which was badly written or did not suit the sensibilities of an individual judge.

If the NPA appeals this judgment, they would have quite a few arguments they could therefore plausibly make before the Constitutional Court and may well have a strong prospect of success. But I guess we might have moved beyond mere legal technical arguments and that for political reasons the NPA might well not appeal the judgment or might decide not to re-institute charges against Zuma.

But I was wrong about the way in  which Nicholson would decide on Friday, so in the present political climate it might be better for me to refrain from any predictions on this score.

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