The Times asked me to write a short piece on the effect of the SCA Zuma judgment on the judiciary. Money quote:
Ironically, Nicholson might inadvertently have done our judiciary and democracy a favour. He took the heat off the judiciary at a time when judges were being branded as counter-revolutionaries and then it was left to the SCA to correct his legal mistakes.
Though not planned, the outcome shows that our judiciary is alive and well and that even powerful men like Zuma cannot expect special favours from our judges, because in the process of checks and balances built into our judicial system, the law will triumph over demagoguery and idle threats.
Now I see Bantu Holomisa has called upon the Judicial Services Commission to investigate Judge Chris Nicholson. Says the press release:
The SCA identified several instances in which Justice Nicholson had relied on hearsay and documents not contained in the affidavits before the court in order to draw conclusions that were untested. These inferences were not required in order to make a ruling and had massive political implications.
We call upon the Judicial Service Commission to investigate the instances identified by the SCA where Justice Nicholson contravened judicial procedure. We further request that the JSC makes a finding on whether Justice Nicholson is fit to hold office under the circumstances.
Ag nee wat, this is just political opportunism on the part of the UDM – probably scared they will lose the few votes they still got to Cope. I would have expected more from Mr Holomisa, the ex-military dictator.
First, the complaint is not going to go anywhere. Judge Nicholson was wrong. He made political statements and applied the law wrongly. He would not be the first judge in the hirstory of South Africa to have done that. That is why we have an appeals process – so that mistakes can be corrected by higher courts. Unless Holomisa can show that Nicholson was bribed or improperly influenced to make his judgment, the JSC is going to laugh at this ridiculous complaint, as they should.
Second, Mr Holomoisa is not doing our judiciary any favours by politicising the issue even further. Yes, Nicholson made mistakes. yes, he was lambasted by Harms (not an angel himself!) for wading into political terrain best kept to politicians or for brandy and coke talk around the braaivleis fire (with or without Steve Hofmeyer present). But to lay a complaint may suggest to the public that some of our judges cannot be trusted to make findings based on the law and how they see it and might actually have the effect of creating distrust in our judiciary.
Let it rest Mr Holomisa. Our judiciary will always make mistakes – sometimes very serious mistakes of fact or law) and these may or may not be corrected on appeal. This does not mean that judges are dishonest or have breached their oath of office. Unless a judge acted unethically (by taking money from a political party or a company and then doing favours for them from the bench, say) we should be slow to run to the JSC with complaints.
Sorry prof, but moudmodder malema disgrees with you. Briefing the media on the ANCYL’s reaction to a Supreme Court of Appeal judgment Malema warned that “dark forces” were at work against Zuma and implied that the five judges of the SCA had been influenced in their judgment in favour of the NPA.
“Judges can be spoken to by any other person, knowing the tendency of these ones who are against us. They [the 'dark forces'] travel at night. They’ve got the potential to do anything…”
ANYTHING!!!!!
How can you possible phantom that Nicholson has done our judiciary a favour and is a hero of the judiciary?
I saw his boss, Vuka Shabalala, on TV last night, and Judge Shabalala looked embarrassed and devastated.
Had Nicholson focused on what was in front of him and ruled in favour of JZ, you may have a point. But as things stand, an ill-advised judicial ruling made by Nicholson, led to the removal of a sitting state president. And also led to huge embarrassment to other judges in the judiciary. A judiciary which:-
a) you are NOT part of;
b) has not asked you speak on its behalf; and
c) will forever have to live with the shame delivered by Nicholson
Harms said :-
“It is accordingly necessary to state at the outset what the case is about as opposed to what it is not about”
then said:-
“It follows from this that, as the trial judge recognised, ‘political meddling’ was not an issue that had to be determined (para 229 of his judgment). Nevertheless, a substantial part of his judgment dealt with this question; and in the course of this discussion he changed the rules of the game, took his eyes off the ball and red- carded not only players but also spectators. Lest his judgment be considered
authoritative it will be necessary to deal with these matters.”
The fact that Harms forced to preset the SCA judgement with the above words, tells you just how off the mark Nicholson was. And Bantu Holomisa is being a responsible citizen for initiating that complaint to the JSC. Judges are not above the law, and NOT above reproach. This is where Lizeka Mda’s article, that you rubbished, becomes relevant.
Maybe Nicholson is your hero because his drivel led to the dismissal of Thabo Mbeki, but you have neither authority nor reason to pronounce him a ‘hero of the judiciary’.
Mili // Jan 15, 2009 at 3:54 pm
Bra Malema is just starting to grow on me. Who says you need to be educated to understand this blog:
“Malema said the ANC would not amend the Constitution to protect Zuma from a trial.
“We’re not going to agree to any changing of the Constitution to accommodate an individual. This is the Constitution of the people of South Africa. It will never be amended to suit an individual.”
Followed by this :
“He added, however, that the ANCYL had “confidence in the courts but it doesn’t mean you can’t criticise”.”
A rough diamond I tell you.
Khosi, do a detect a bit of bitterness there towards Nicholson because his judgment gave the ANC the excuse it wanted to get rid of him? In any case I was posing a question – wondering aloud so to speak – whether Nicholson might not have done the judiciary a favour – even if he did not realise it at the time!
@Pierre,
My point is that he did the opposite. The people in the judiciary are showing clear embarrassment and disgust at Nicholsons actions.
Prof, I concur with Khosi when he implies that
Nicholson`s judgment has had serious consequences which left this country at a political peril,
unless if you meant in the context of the proper interpretation of section 179 although that can still be limited to apply only within the legal fratenity as opposed to ordinary citizens. Therefore in my view the word hero cannot be suitable under the circumstances.
Who in the judiciary is showing embarrassment and disgust? The SCA clearly wasn’t impressed, but I wouldn’t say they were disgusted with the man. Tshabalala has simply said that Nicholson J will not preside over another Zuma trial – which is expected, considering all the hullaballoo over his last decision, which erred in its findings a bit.
So what – he made a mistake! That’s why we have an appeals process, that’s why the SCA has 5 judges instead on one, that’s why we have a legal system designed to catch the odd slip up by a judge. The point is that the legal system WORKED, one court made a bad call which was corrected by a higher court.
As pointed out, Nicholson was not the first judge to make a mistake. I am not a lawyer, but in the course of my studying tax law I saw a few horrific decisions by judges which slipped under the radar, forevermore to haunt unwitting taxpayers. I’m not overly impressed with the UDM’s call for an inquiry – if judges had to spend their lives looking over their shoulders to see who was coming for them they’d invariably make a lot more mistakes than they do now.
Khosi, the removal of the state president was not Nicholson’s responsibility, it was the ANC’s. If anyone should be made to answer to the COUNTRY (not just ANC members) for that, it should be the ANC – the judge never gave anybody orders or suggestions that this was an appropriate course of action, the ANC simply seized upon the easiest way to clear the path for their beloved leader to ascend to the throne (getting rid of him through parliment could have been done, but it would have been WAY too messy).
And there IS an interesting side-effect of Nicholson’s ruling, in that he DID unwittingly take the heat off the judiciary…remember, this was at a time when threats were being uttered, judges were being called nasty names, and there was a wave of pre-emptive anti-judiciary sentiment. While I’m fairly sure he didn’t quite plan that it would all work out this way, for a brief moment after his ruling the clouds parted, the sun shone through, and the ANC finally believed that there was at least one white judge who wasn’t a counter-revolutionary colonial racist (based purely on his deciding FOR Zuma of course).
The Big Slipper – “Tshabalala has simply said that Nicholson J will not preside over another Zuma trial”
Attaboy Vuka!
Prof – “I would have expected more from Mr Holomisa, the ex-military dictator.”
I would also. Was it not him who also said: “The King can do no wrong.” when he pleaded to the charges in his trial? Or was it that other guy. Could never really distinguish between the ‘states’ of Transkei and Ciskei and who the leaders were.
ozoneblue – Malema = “A rough diamond I tell you.”?
No, I think a shitty piece of sand/lime stone, commonly referred to as ‘shist’ by miners – ergo, he is not going to be there much longer = he is not going to make it to Parliament (at whatever level) or the executive (at whatever level). When he said what you quoted above, he merely said what the ‘UNCLES’ told him to say. … Hy is per slot van sake nog maar net ‘n SNOTNEUS seuntjie man! (Only recently became a ‘MAN’ in a ‘Mountain Ritual’, but his political guidance was flawed. He still fears the dark forces that ‘travel at night’ and have ‘the potential to do anything’. … He still wetting his bed?) No, I don’t think he should at all be taken seriously – even when, in a deep (almost adult) guttural voice, he says (nay shouts): “… We will kill, for Zuma!”
Yees, I knoww. … I’m just a ‘shit-stirrer’, hey Mpho?
Anonymouse // Jan 15, 2009 at 8:10 pm
As I pointed out in another thread it is well known that Business Day was in possession of a top secret NIA document also leaked to the YCL that seems to be at the bottom of his post-pubescent paranoia.
I agree that one can’t blame Nicholson for Mbeki’s demise. Who would have known that the ANC was on the brink of splitting in two like a ripe tomatoe?
Anonymouse, let up please give praise, ozoneblue is right to commend Malema’s uncharacteristic comments of assuring us the constitution wont be ammended to suit individuals.Aspersions should not be cast on his mature statement,instead we should commend so as to encourage the new trend.
I agree with the Prof., the erstwhile dictator is mad to call for an investigation by the JSC,I just think he’s trying to score cheap political points emanating from his lack of understanding of how the courts in-built check and balances works, amd anyway I do not think he should be taken seriously he always seem infatuated by the ANC goings on as if he has no political party to lead I feel fo his blind followers.
Incidentally on Mbeki’s demise, Mr Phosa made it clear that Nicholson should not be blamed because his judgment was one of the reasons why TM was sacked and not the reason.
The ANC should concede that they just were too quick to axecute what they believed what the correct Judgment as opposed to playing their lottery with us.
For almost everything they where doing they quoted Nicholson (their revolutionary Judge), including implication some of the cabinet ministers (whom they later approached and requested them to remain).
Mbeki was also sucked because of Nicholson Judgment as the main reason and now the ANC is preaching the opposite of what they had done in practice.
The principal reason was the Nicholson Judgment and the rest were just small issues and this is substanciated by the fact that the president was fired a few hours after the Judgment.
@Mdu // Jan 16, 2009 at 9:28 am
Why can`t we differenciate from what we are told and what we think taking into account all relevent circumstances.
The fact that Phosa said Nicholson Judgment was not the cause of the sucking of the President does not in reality change what happened in practice.
The test is objective.
From what happened, the Nicholson Judgment has been seen as the cause, and everybody could be justifeid in holding the same view.
The first 5 paragraphs of the ANC statement on his sacking contradicts Phosa:
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=103732&sn=Detail
They said the ANC “has deliberated on… the Pietermaritzburg Court judgement” for 2 days.
They said: “In particular, we have *****focused***** on the implications of the judgement” (starts my emphasis)
Then they mention unity and cohesion of the ANC in the context of the implications of… Yes “the judgement”. And that they want to heal the rifts, and so they have decided to recall him.
(starts my emphasis) -> (stars my emphasis)
Also note they “focused on the *****implications**** of the judgement”
I would wish Mdu to comment on the @Z statement of the sucking.
Khosi your support for the idiotic complaint of the former Dictator of the Transkei country is laughable! yawn.
It is of on consequence that Nicholson errered. He was corrected by the SCA.
An appeal is also looming. These are the legal contours which an imbecile like Holomisa does not fathom. I excuse his blatant ignorance.
I am wordless for bloggers who are can google but just get lost in the forest of such suppurating knowledge!
The nicholson judgement could have been but one of the factors. Mbeki was not co-operating with the leadrship pf the ANC since loosing elections. He nolonger attended political meetings or executed political instructions. He was so dejected.
It was time to go or be released! It was a taste of his own medicine some would say. I respect the dude. Let us allow him time tio lick the wounds.
It has been a difficult experience to be sacked on such a short notice when your are enjoying the elegance of high office. as it ended! His ego has been terribly dented !
We cannot reverse the wheel of history. He is gone forever. COPE had been in the pipeline in the meantime. The judgment could have been the spark , as his dismissal was the pretext for renegades to establish COPE. Political discord was the actual reason for dismissal!
The judgment in deed had fulfilled the objects of legal-politico history !
I has said that the game is not yet over Prof! This is a fuss!