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.
The NPA must rue their decision to ask for the conspiracy bits to be struck from the papers….. Who would of thought that the judge would go wandering off on a whim down the conspiracy trails and actually find (based on some pretty circumstantial bits and pieces) that there actually had been various contortions of cabinet meddling involved – the worst of which actually seems to have saved Oom Jacob from sitting next to Schabir in chookie right now. And that all this would trigger the final takeover.
This whole drama about the resignations is to my mind just a major cock-up brought about by the sudden rushed firing of the president – the various actors just didn’t have time to get all their ducks in a row. I would blame the NEC entirely for rushing this whole thing – and it seems revolve around this “political space” created by the judgement that some morons thought had to be exploited immediately – as if the whole Zuma trial issue can be wished or manipulated away once in power.
Hey Pierre,
Thanks for an interesting post. These (especially the second) argument my Mbeki’s legal team is, i agree, very enlightened and clever. I have a few questions about it, maybe you could opine a response.
The first regards the comment that “Judge Nicholson had therefore made findings about a matter that is outside his jurisdiction”. Are you saying that Chris Nicholson should have struck the matter from the roll like what what his Gauteng colleage Willem van der Merwe did in Glenister v President of the Republic of South Africa and Others? But the distinction between these two cases is that it can be said in that in Chris’s case these findings he pronounced upon Mbeki were incidental or ancillary to findings he made on another, but main point which was within his original jurisdiction. As such it was fine for Chris to proceed and adjudge. While in Willem’s case the pith and substance of the merits being argued before him were absolutely beyond his jurisdiction. As such it was not fine at all; Willem did have the power.
Second question regards the comment of the Constitutional court having to make findings of fact. What i am curious about is, does the exclusive jurisdiction of the constitutional court per s 167(4) equate to an original jurisdiction of the Constitutional Court? If it does, and then like the US Supreme Court it must, if it has not done so already, device procedures which will allow it to make findings of fact? The USSC uses what is called a special master. I have no fucking idea what that latter does. Apart from this, yeah, the CC is in some serious crap if it has to entertain points of facts, especially after what the coup leaders (a coup of persuasion not arms) reacted with after the court dismissed Zuma’s appeal.
Good luck to those judges,
Katlego
Peter, I agree with you but I would not blame the NPA. Even if they did not apply for those bits to be struck from the papers, the judge would have considered it anyway; because the Zuma team had put it there in the first place.
The CC Rules provide for a party to make an application for discovery of docyments and tape recordings in terms of Rule 35 of the Uniform Rules but that wont help in this case. But Rule 38 of the Uniform Rules can also apply to the CC and so oral arguments can be heard but as far as I am aware has never been heard by the CC.
Is there a possibility that Nicholson J could be asked to explain his judgement, or parts of, to the Con Court.
And if the courts finds that Nicholson J did over-reach in his judgement, which in turn lead to the prejudice and humiliation of Thabo Mbeki, can TM launch a civil case (against Nichiolson J, the PMB High Court, Department of Justice and Con Dev) arising from this?
khosi // Sep 25, 2008 at 7:53 am
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Interesting question. However, I opine that South African law does not allow a litigant or another person affected by a judgment before a competent court to hold a judge or another presiding officer civilly liable for the decisions that the said judge or presiding officer made.
In order for him to succeed in holding Chris Nicholson liable in civil law, Mbeki must prove that he acted mala fide or in bad faith; he acted with an unlawful intention to injure him and was successful. This will not be easy at all.
The rationale for this is to enable the judges or presiding officers to disperse justice without fear, favour, etc. and devoid of fear of being civilly liable for their decisions.
As Prof Pierre has suggested, the best technical judgments that the Constitutional Court can come up with are that the application is immature or that Chris Nicholson made a determination which was Constitutionally reserved for only the Constitutional Cout, i.e. that the President has not performed a Constitutional duty or had breached the Constitution (by meddling in the affairs of the NPA and thereby also breaching the doctrine of separation of powers which is Constitutionally enshrined and protected).
Whatever happens to that application, it will be interesting to see especially us who are in the legal fraternity…
Pierre
Re: para 5 – assume reference to s24 of Constitution in that paragraph is an error as s24 refers to environmental right?
News: Speaker will be Deputy President!
Can I ask a question about the resignations?
1. Essop Pahad said yesterday that they would originally resign on the day of the election of the new president, but resigned midnight on Wednesday due to advice from legal council.
Why would legal council advice them thus?
2. Pahad also said that if they did not contest Nicholson’s findings they were liable to be indicted on the basis of that.
Is that correct?
z // Sep 25, 2008 at 8:50 am
“Why would legal council advice them thus?”
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I opine that this was merely a tactical or technical decision. Technically speaking, if he were to resign on the day of the elections that would have meant that he would continue to serve under the new administration under President Kgalema Motlante. We all know that he did not like this.
Secondly, that would have divested the new president of his powers (and maybe desire) to elect his cabinet and those whom he wants to serve under him. This would not have been possible or else Pahad would have been axed and destroy or tarnish his political image. This he also did not like.
Pertaining to yur second question, it is too vague for my comprehension sorry. I will wait for others to answer it or you can elucidate it and allow me to answer it.
Sne
I hope this clarifies a bit:
2. It seemed that Pahad was saying that charges could be brought against members of cabinet on the basis of Nicholson’s political inferences. So in that view they have to contest what Nicholson said, or else it might be reason enough to charge them.
I don’t know what constitutes a basis for the NPA to charge someone, hence the question whether indeed this is sufficient for charges to be brought against them. (Let’s say the new leadership wanted payback, I don’t think so, but hypothetically)
z // Sep 25, 2008 at 9:38 am
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Got it now thanks.
That indeed is possible. However, due to the inherent difficulties that the NPA would have to grapple with in trying to charge them, the challenge to Nicholson’s judgment would merely come as a way of political vindication or cleansing so to speak; they would challenge it merely to save face as the executive especially the Presidency. From my point of view, the judgment had far more political implications on the executive than legal ones.
On a more practical note, the judge’s ‘activist’ utterances may merely incite or instigate investigation into the matter and not charging though the latter is indeed possible.
On the flip-side though, if they were to be charged and convicted, do you not think that such would destroy the already fragile credibility of the NPA and would now be seen as the political tools of the new administration for settling political scores?
Thabo Mbeki’s last letter to cabinet. Read it at:
http://www.int.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20080925054640457C876120
This is what we are losing.
I think everything that’s transpired is “Historical”. In fact I wouldn’t be surprise if a movie is made of the events of the last 10 years concerning the Arms Deal…
I can see a suspense thriller in the vain of “All the Presidents Men”… I wander who will play me though, “Joe Public”. oh yeah, won’t be in the script because we didn’t have a ‘heard voice” now anyway.
Khosi,
Thanks for that link. It certainly is an incredible letter.
Prof
Interesting article. But isn’t the application similar to what Zuma is also arguing (regardless to the fact that he is doing everything to stop his case going to court), that he was charged in absentia. If so i don’t think this can be said to be “legal history” in the making. I hold the view that this issue has already been answered in the lower high court.
Khosi
Thanks for the link
Sne // Sep 24, 2008 at 3:54 pm
….what about you?
I am a Law student at UKZN.
Fascinating analysis Pierre. I will join you if and when you go to the CC.
Mqo // Sep 25, 2008 at 11:57 am
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Ok thanks. Finish that degree of yours and join us in the honourable profession, the legal profession…
In my opinion I think if TM can succeed in his application including the determination of the findings of Nicholson J ,though I respect his (TM) right to approach the court (s 34) but he if the CC decide on his behalf -what would be reaction of those who believe that he interfered with the NPA to prosecute without fear, favor and prejudice .I foresee civil war.
don`t you think it is desirable for the court to refuse this application based on the consideration I postulated above and also influence (though i`m not sure whether its possible) the NPA to stop the charges against Zuma in terms of s 6 (b) oF the CPA.
n
Ntanjana A (Fort Hare LLB student).
@ Ntanjana.
A civil war is a bit far fetched, don’t you think!
I have just read that a report that Zuma is opposing TM’s Concourt application!! The report is on http://www.iol.co.za
Prof,
Thanks for an enlightning post!
I think that Mbeki’s application (borrowing Prof’s phrase) is dead in the water for a number of reasons, the main one being that he has himself to blame for not deposing to an affidavit refuting Zuma’s allegations of political medling. If one closely analyses the papers that were properly before Nicholson, including affidavits in the Postponement and Permanent Stay applications, the NPA would not have responded to some allegations in the manner they did without having consulted or taken instructions from Mbeki. It appears that NPA or Mbeki through NPA was selective in dealing with some of Zuma’s allegations and not others. Nicholson had no option but to accept unrefuted allegations. Some of political medling is inferred from NPA’s own version!
That is why I do not buy the argument that Mbeki was not afforded an opportunity to respond. For goodnes sake, Zuma’s application was on notice to the NPA, and not ex parte like their search and seizure application!
As for direct access to Concourt for something that is only of academic importance and to restore Mbeki’s dented ego – NO CHANCE!
If the Court do deem to hear the Application, why do you say they may just strike out the offending parts and not comment on his stance? They already ruled that they argeed with Mbeki’s take on events, it is Nicholson J who went against the Higher Court’s interpretation, wasn’t it?
Oh hell, Khosi … no more Thabo Mbeki. I still can’t believe it.
Clara,
This will give TM the opportunity to be himself and not be shackled by the responsibility of state. You see, he is not just a former president, he is a CAUSE. He is the ideal that young people will live to emulate.
So worry not, sweet Clara, the best is about to begin.
Andrea becker put a blindfold and go play in the traffic! Frankly i do not care who is going out with whom but your attack on Prof a respected analyst and expert bothers on envy and low self-esteem. It might be a good idea to increase your antipsychotic dose and get your head out of your arse!
What is bothering this Andrea Becker creature? Not getting enough sex?
Clearly Andrea’s problem with Prof. De Vos is jealousy. This fixation on his “black boyfriend” seems to indicate that she is enamored of Prof. De Vos, and wishes to supplant his boyfriend in the Prof’s affections.
Andrea, here is some advice: the onlu way for you to get over this is to go to the Prof, and put you case directly to him. See if you can convince him to “see the light”, and choose you instead.
Let me state at the outset that, I do not hold any brief for Mbeki or Zuma.
Looking at Mbeki’s application from a legal point of view, and considering the concluding judgment of the 5 member court in the Hlophe matter, regarding the constitutional court complaint against Hlophe JP in which Zuma’s name was equally implicated, I doubt whether the constitutional court, as presently constituted, would be a proper form to adjudicate on Mbeki’s application.
Whilst I have not read the judgment, because it is not yet available, nor wish to cast any aspersions on the integrity of any of the justices in lodging the complaint against Hlophe JP, the mere fact that the 5 member court ruled in Hlophe’s favour, irrespective of its reasons therefore and which reasons would indubitably be the subject of an appeal, speaks volumes against the suitability of the constitutional court to consider the merits of Mbeki’s application.