Mbeki’s Constitutional Court application can make legal history

President Thabo Mbeki’s application to the Constitutional Court may well make legal history. The President lodged an urgent application in the Constitutional Court on Monday to contest the findings by judge Nicholson that there was political interference in the prosecution of Jacob Zuma.

The application asks the Court to grant direct access to  the Constitutional Court (skirting the Supreme Court of Appeal) to appeal the explosive (explicit or implied) findings of Nicholson that there was political interference by Mbeki and his cabinet in the decision to charge Jacob Zuma and it asks the Court to set these findings aside. Alternatively, it requests the Court to grant him direct access and to find that the Nicholson findings were made without affording him a hearing and that this constituted an infringement of his constitutional rights, including the right to dignity and the right to have disputes settled by a court of law.

Judge Nicholson has not yet granted the NPA leave to appeal the judgment and Mbeki was not a party in this case, so it seems legally rather tricky and very unusual for him to ask the Constitutional Court to hear an appeal on certain findings of the High Court. As far as I am aware, the Constitutional Court has never faced a case like this in which a person who is not a party to proceedings asks it for leave to appeal a judgment – even before leave to appeal was granted by the judge of the High Court.

He argues that the Supreme Court Act requires a High Court judge to consider an application to  request leave to appeal only those aspects of a judgment which constitutes “judgments or orders” but that the findings made against him and his cabinet are not “judgments or orders” and that judge Nicholson is therefore not legally empowered to grant leave to appeal against these “political” findings.

He therefore has no remedy in either the High Court or the Supreme Court of Appeal and as section 34 of the Constitution states that every person has a right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court, the Constitutional Court is obliged to hear this case.

This is quite a clever technical argument and we will have to see whether the Constitutional Court agrees with this. If the Court wants to avoid dealing with this highly political case, it might, however, decide that as the President was not a party to the case and as leave to appeal has not yet been granted by Nicholson, the application is premature. They might well argue that President Mbeki will not be denied his right of access to court because once Nicholson grants leave to appeal the President could always join the appeal as an amicus curia or in some other capacity.

But Mbeki’s lawyers also made a second – in my opinion more compelling – argument. This is that in terms of section 83(b) of the Constitution the President of South Africa is obliged to uphold, defend and respect the Constitution as the supreme law of the Republic. This is a constitutional oobligation and in terms of section 167(4) of the Constitution only the Constitutional Court (and not the High Court of SCA) can decide that the President has failed to fulfil a constitutional obligation.

Yet, so the argument goes, Nicholson in effect made findings that the President had failed to fulfil his constitutional obligations to respect the independence and impartiality of the NPA. Judge Nicholson had therefore made findings about a matter that is outside his jurisdiction and only the Constitutional Court can rectify this.

This seems like a rather compelling argument to me. Given the fact that Nicholson had made far reaching findings about the failure of President Mbeki to uphold the Constitution, one may well argue that the judge strayed into the jurisdiction of the Constitutional Court and overreached.

But even if the Constitutional Court agreed, it will face another problem, namely that they will now be called upon to make findings of fact without having heard oral evidence about these highly politicised and controversial matters. One way out for the Court is to deliver a technical judgment in which it rules that Nicholson did not have the jurisdiction to make findings about Mbeki’s interferene in the NPA – without actually ruling on whether such findings were right or wrong.

This would not satisfy Mbeki, but it would be a kind of Solomonic solution, giving Mbeki a legal victory on the narrow legal point without ruling on the explosive factual findings themself.

The hearing before the Constitutional Court is going to be facinating for us legal nerds. I think I must book my ticket to go and listen to the case when it is heard. Whatever happens though, the Constitutional Court has been handed a very difficult legal and political problem and it will need all the wisdom and principled pragmatism it can muster to find a solution. I am glad I am not one of the judges.

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