Today the Supreme Court of Appeal (SCA) delivered a scathing indictment of the Nicholson judgement in the case brought by Mr Jacob Zuma to challenge the decision of the National Director of Public Prosecutions (NDPP) to charge him with corruption without hearing representations from him first.
The SCA judgement 9 written by Harms J) makes clear that the trial court erred by making findings on the merits of the allegations of a political conspiracy against Mr Zuma, when all it was required to do was to find whether these allegations were relevant to his case or not in order to decide whether the allegations had to be struck out or not. As it turns out, these allegations (said the SCA) were completely irrelevant to Mr Zuma’s case.
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.
This commendable approach was unfortunately subverted by a failure to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions.
Nicholson, said the SCA, had wrongly placed a negative onus on the NPA to demonstrate that no political meddling had taken place – something that is unheard of in motion proceedings like these.
At the same time the SCA provided some clarity on the kind of independence enjoyed by the NPA in South Africa, stating that an Attorney General (or NDPP) is required by convention to make prosecutorial decisions without regard to political considerations and may not subject his discretionary authority to that of government. He or she is also not responsible to government to justify the exercise of his or her discretion because this political office has judicial attributes.
It confirmed – as I have long argued – that there is no contradiction between the Constitutional guarantee that the NDPP must act without fear, favour or prejudice, on the one hand, and the requirement that the Minister of Justice exercises final responsibility over the NPA on the other. As the SCA pointed out
although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.
The judgement also deals a blow to Mr Zuma’s potential legal arguments about a permanent stay of prosecution as it makes clear that a “prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because… the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal.The same applies to prosecutions.”
This means that all this talk of political conspiracy is irrelevant for Mr Zuma’s case. If there is a case to be answered – even if that case was brought with improper or political motives – Mr Zuma still needs to answer the case. He will not be less guilty (if he is indeed guilty) just because he was charged for political reasons. A guilty man remains a guilty man.
The SCA judgment therefore seems to represent a stunning blow to Mr Zuma’s arguments and his hints and dark mutterings of a political conspiracy. It makes – what seems to me at least – the sensible point that an accused cannot and should not escape prosecution because the decision to charge him was politically motivated – as long as there is indeed a prima facie case against him that needs to be answered.
At the same time the SCA judgement is careful to point out that Bulelani Ngcuka’s decision not to prosecute Mr Zuma might have been valid. Just because one person is guilty of corruption does not mean the person being corrupted is guilty of a crime because the state will have to prove that the latter person had the intention to be corrupted. As I have argued repeatedly, this will be the heart of any defense by Mr Zuma’s legal team if he is ever charged. In pointing out this obvious fact, the SCA again lambasted Nicholson for his weird approach to the law and the facts.
Once again, the ‘strategy’ involving Dr Maduna, Mr Mbeki and all the other members of cabinet as well as the causal connection between the Ngcuka decision and Mr Mbeki and the cabinet as found by the trial judge were not based on any evidence or allegation. They were instead part of the judge’s own conspiracy theory and not one advanced by Mr Zuma. Further, the finding, by implication or otherwise, that a non-party may have committed a criminal act where this was not alleged, where it was not in issue and without hearing that party is incomprehensible.
He was legally crucified by the SCA.
…stating that an Attorney General (or NDPP) is required by convention to make prosecutorial decisions without regard to political considerations and may not subject his discretionary authority to that of government.
Given that the NDPP is required to make these decisions without regard to political considerations, I’m curious to know if these decisions of the NDPP are required to take a broadly defined abstract like national security into consideration?
Prof., we expected the SCA to oblige in Zumaphobia, this Court detests Zuma.
Even if Zuma were to appeal to the CC, the same result is expected for both Courts hate him, but this hatred and resultant repulsive judgements proves and achieves nothing for an out court settlement will soon be reached.If the NPA recharges Zuma, this will happen.
Kgalema must soon appoint an NDPP, if he fails Zuma will and this ludicrous judgements by conservative incompetent judges will come to nuoght!
If I were Mpshe I will engage the Zuma legal team with a view to a settlement otherwise a career-limiting move will be foolhardy, so this judgment means nothing!
Nicholson had a complete shocker. He clearly just wandered off blissfully on a tangent – I am assuming that he was inappropriately influenced. As a non-legal person I fail to understand how these sorts of judgements don’t go through some cursory peer review before delivery. This surely would pick up glaring problems such as in this case. It would only take another judge/advocate 25minutes to read…?
And we the taxpayers must now pay for all the legal heavyweights involved in this circus. Surely Nicholson should get docked for his share of the costs, or is there no accountability for judges?
I love the phrase “conspiracy theory”
In effect they are saying that Nicholson is a nut case…
Anyway, Mdu, this Judgement means a lot, even if you disregard the whole Zuma issue, Nicholson’s judgement had quite a lot of practical issues for the NPA and the SCA resolved this.
See you don’t see the judgement for what it is, but rather you blindly follow this your idiot leader Zuma and disregard the Supreme Court of Appeal (and for that matter the Constitutional Court) as frivolous. Spoken like a true ANC and Zuma follower.
Eish Mdu – you comment and argue like the most well paid Zuma sycophant out there – perhaps you are paid to make a fool of yourself for your Great Leaders benefit?
Nicholson must have known he had it coming – but his judgment had the desired effect as far as the Zumbies are concerned. One step closer for the self serving moral reprobate into the Tuinhuis. At least this judgment sets the law straight again and the NPA can at least carry on with its work in other cases without the nonsense of the Nicholson judgment messing with its operations.
I wonder if we’ll ever know if poor Nicholson was “got at” to make a fool of himself? Mdu, can you shed some light?
@Mdu
what?
“Even if Zuma were to appeal to the CC, the same result is expected for both Courts hate him.”
Please provide proof for this lol
“nothing for an out court settlement will soon be reached.If the NPA recharges Zuma, this will happen.”
Mdu this will not happen the NPA will go ahead with prosecutions as it has the unique chance of proving that it is independent with out fear favour or prejudice out of court settlement not a chance!! The NPA is under attack its time for the NPA to fight back
“Kgalema must soon appoint an NDPP, if he fails Zuma will and this ludicrous judgements by conservative incompetent judges will come to nuoght!”
well now that would be political interference now wouldnt it? this is out of the Kgalema hands as its up to parliment still to set up a committee and then decide to fire pikoli or not.
If I were Mpshe I will engage the Zuma legal team with a view to a settlement otherwise a career-limiting move will be foolhardy, so this judgment means nothing!
why so ur bad boy Zuma can become president and ruin the economy by scaring away investors? Clearly your pro zuma and by the way this judgements means that Zuma is a charged man( so being charged means nothing?) yet you feel comfortable to have a charged president in office? moral compass abit lost there??
Pierre,
Given the gravity of Nicholson J’s error, it is clear that one cannot categorically dismiss Lizeka Mda’s views on the motives of the learned, or not so learned, Nicholson J: – http://www.news24.com/City_Press/Columnists/0,,186-1695_2400666,00.html
So scathing was the judgment, at some stage it seemed that each and every paragraph of Nicholsons judgment was torn to shreds. I, for one, do not think that we have heard the last of the Nicholson judgment and its shenanigans.
This judgment also disputes, all on this blog, who said the trip that Mbeki and Pikoli took to Chile was improper. Moneyquote:
“Mr Pikoli did not accompany Mr Mbeki although they were on the same mission. They did not meet and did not discuss the matter. Whether Mr Zuma believes this or not is another matter; courts are duty-bound to deal with proven facts.”
Again, one by one, all the lies about Mbeki will unravel.
@Peter my understanding is the worest that can happen to Nicholson is Mbeki has a right of recourse to sue Nicholson
What happens now to Judge Nicholson, now that the five SCA judges have declared him a flawed conspiracy theorist? At least he should be removed from his job after such condemnation?
Pierre, do you have any comments on the report that if Zuma and the NPA reach a deal which entails a sentence of less than one year prison term, Zuma can still be elected into parliament and then presidency?
Furthermore, what is the likelihood of the ConCourt reversing an SCA decision of five Judges? Is there a precedent of these nature?
Personally i think Kemp J Kemp and team should be pressing for a deal instead of wasting efforts at the COnCourt. Whether the NPA will settle for a less than one year sentence on a case they have pursued for so long is another matter, we still have many miles to go on these JZ story!
Mdu, before you cry zumaphobia, racism, counter revolutionary, please try to put some effort into actually reading (whilst trying to understand) today’s judgement. You see, the political transformation driven by the ANC in the past four months is based on a hot air judgement made by Nicholson on 12 September 08. To indicate my utter joy with today’s judgement I would like to use the words of comrade lovepants as he stood outside the Pietermaritzburg court “The decision (judgement) was a lesson for all of us, all the people of South Africa, that we should not be quiet when the people in power break the law.”.
All very interesting. Apparently even justices who are not the product of judicial transformation can make serious mistakes.
Well i for one if i was ANC would be rather red faced, Mbeki is clearly vendicated and to recall Mbeki just shows the the level the ANC can abuse or not think further than their noses.
Mbeki being recalled justified? These actions show Zuma is the person responsiable for splitting the ANC.
PM,
Was Nicholson judgment made in error? You should read the whole SCA judgment and it’ll make you doubt that the learned judge applied his mind to the case or was not improperly inlfuenced. The SCA makes one realise the gravity of the irregularities in his judgment and they would make any lawyer want to hide himself…
Sne – Seeing that all judgments against Zuma are regarded as ‘counter-revolutionary’, can Nicholson J now be called a ‘revolutionary’? Just a foolish question though, because I should really not stoop to the level of Julius Malema et al – but I must say, I was from the very outset amazed at the glaring nature of the irregularities in Nicholson J’s judgment, and I even pointed out some of them here before the NPA decided to lodge an appeal.
Prof – “although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.”
Can this dictum impact negatively on Mothlanthe’s decision to recommend Pikoli’s dismissal? Surely looks like it – and I think the Committee currently considering that issue will pounce on it.
Just to let you all know, Mdu is correct – the courts do hate JZ (except Nicholson’s court). The reason that they hate JZ is irrefutable – they keep deciding against him!!!
Come on people, this is elementary “ANC Politics 101″ – the guys that decide in favour of the ANC and it’s members are the good guys, and the guys that decide against the ANC and it’s members are bad guys.
You people spend too much time caught up in the ‘law’ and what it says – you’re all playing on a different field to the enlightened cadres in Luthuli House and beyond. Naturally, this means you are wrong – if you think you are right to spend all this time talking about the ‘law’, then you obviously hate JZ too.
How was that Mdu? Do I maybe have a chance of a nice position in the ANC?
Big slipper – If that is how it is, yes, then I do hate JZ and the ANC, and I know they would hate me for that. But so be it – I have my conscience to live with. Or should I rather solve this difficult thing the Christian way: “I do not despise (hate) the person, but what he is doing, that really angers me.
“although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.”
May the minister instruct what should be investigated and what should not be investigated ? How do the NDDP and the minister decide what is worth investigating given that Harms made it clear that the NDPP is without a doubt a political appointment ?
anonymouse
“Can this dictum impact negatively on Mothlanthe’s decision to recommend Pikoli’s dismissal?”
I think Pikoli’s allegations of the minister of justice and Mbeki’s interference with the prosecution of Selebi is probably more relevant and may explain why Mbeki has not (yet) joined COPE.
ozoneblue, it is clear that the Minister can NOT instruct the NDPP what cases to investigate or prosecute and which one’s to leave. the Minister exercises POLITICAL control over the NPA through the mechanism of a prosecution policy which he or she must agree to in conjunction with the NDPP. This policy can set out guidelines based on the political imperatives of the government of the day: do they want to focus on apartheid crimes; rape; highjackings; corruption etc. But it is VERY CLEAR the Minister (or President) cannot tell the NDPP who to prosecute or arrest or not to prosecute or arrest – as long as the NDPP acts in compliance with the prosecuting policy. That is why the firing of Pikoli is so perplexing and maybe illegal: Nowhere has anyone suggested Pikoli did anything wilfully in contravention of the prosecuting policy. He did apply for a warrant for the arrest of the Police Commissioner and then he was suspended and the President’s legal advisor and the DG for Justice then “assisted” the acting head of the NPA to withdraw those warrants. This latter action arguably was illegal. What a sarcastic and rather sceptical man like Justice Harms would do with these facts is anyone’s guess…..
And the Pikoli saga is about to discredit Parliament in much the same way that the handling of the NPA and SAPS Bills did late last year.
Piloli will take it all the way and the Courts will find that the Pres and the rubber stamping ANC parliamentary majority will be found to have erred. Another unhealthy clash beyween the corrupt ANC revolutionaries and the counter revolutionary judiciary is in the offing. The root cause of this – the great arms deal cover up and the ANC’s continued refusal to come clean… Everyone has some dirt on someone else – if you don’t, you get screwed over like Pikoli, while scum like Selebi get contract renewals and continue to steer their minions despite being suspended. Just as Mbeki suspended Pikoli for no good reason, Mothlante fired him without proper justification, unless of course the desire to protect the Umshimi Wam Bam from prosecution is somehow legally justifiable.
I think that Judge Harms goes a little far.
His (and the other judges – it was a unanimous decision) findings of law are all coorect in my view – just as Nicholson’s judgment was obviously flawed.
But was it necessary to be quite so rude about Nicholson. Yes of course Nicholson went way way too far, and of course he forgot his place.
But was it necessary for Harms to be snide?
I don’t think this is a sign of prejudice on Harms’ part against Zuma. I think it is the product of: (1) coming from the bar where this sort of barrack-room put-down is considered cool; (2) Harms’ inability to recall what it was like long ago when he had to sit as a single judge and consider complex and un-obvious matters. (Has he forgotten the Harms Commission?)
Most surprising is that Judge Farlam put his name to it. I can see that he would agree to having Nicholson’s approach firmly set right, but he is generally a gentleman and I am surprised that he didn’t counsel Harms to exercise a little more of the judicial restraint the he saw fit to lecture Nicholson with respect to.
Peter said:
“Nicholson had a complete shocker. He clearly just wandered off blissfully on a tangent – I am assuming that he was inappropriately influenced.”
I think that is unfair. It is possible for honest people to make honest mistakes, even ones that are retrospect quite glaring. I would be very slow to assume that he was influenced. I think we should all be.
“As a non-legal person I fail to understand how these sorts of judgements don’t go through some cursory peer review before delivery. This surely would pick up glaring problems such as in this case. It would only take another judge/advocate 25minutes to read…?”
It is the nature of being a judge. You must make that decision all on your own. Peer review would open the judgment to outside influence. What he have instead is appeal courts. In the event the appeal court undid what he had done. That is what the appeal court is for.
“Surely Nicholson should get docked for his share of the costs, or is there no accountability for judges?”
I think that that might be counterproductive. If judges worried that they would be sued for their judgments, in addition to the other burdens on their shoulders, they would be too scared to hand down courageous and unpopular judgments when the need arose.
I does underscore the need to have good judges at all levels.
Especially at the level of the two top courts.
Khosi said:
“Given the gravity of Nicholson J’s error, it is clear that one cannot categorically dismiss Lizeka Mda’s views on the motives of the learned, or not so learned, Nicholson J”
Like I said in response to Peter’s comments, I think we should all be slow to impute a dishonest motive to Judge Nicholson. He got carried away. That will happen when one is faced, as a single judge, with a matter that is not obvious and which has consequences that exceed anything one has had to deal with before, or will see again. It will even happen to honest and well-intentioned people.
I also think it is unnecessary to describe him as ‘not so learned’ until one has oneself put on those robes and sat, all alone, in that chair with a complex and unobvious matter before you. (Maybe it does seem obvious now, but things always do in retrospect.)
It is enough to say he got it wrong. It is unnecessary to say he dishonest and stupid.
Prof I apologise upfront for pasting such a lenghty blog. I have also noticed that with copying and pasting the italics is gone!
If you live in a glass house don’t throw stones – Harms v Nicholson v Integrity of Judiciary
At the outset I must confess that I am one of those people who thought that Nicholson J’s judgment was impregnable in so far as his interpretation of s179(5)d of the Constitution is concerned. Even his ‘political meddling’ findings, I thought, albeit gratuitous to a certain extent, were not so farfetched.
I do not take issue with Harms DJP’s judgment in so far as the exposition of the law is concerned. My deep concern is the extent to which he castigated and ridiculed Nicholson J regarding his ‘political meddling’ findings. In my view the impact of Harms DJP’s judgment on the integrity of the judiciary is severe and far-reaching for a number of reasons.
It is not for the first time that a judgment of the High Court in favour of Zuma has been overturned by the SCA. However, in the previous instances the integrity of the judiciary was left intact in the sense that no aspersions were cast by the SCA on the judges who had found in favour of Zuma. One may argue that because Nicholson J’s judgment was damning on Mbeki and others, a judgment overruling same had to be equally if not more damning on the author thereof. In my view this is to fall into the same trap of exposing the judiciary to exploitation by the politicians.
It is acceptable for the higher court to vigorously criticize the judgment of the lower court. But to cast aspersions and speculate on the motive for the decision of the lower court is to betray the integrity and independence of the judiciary. This is what Harms DJP did in his judgment. The effect of his judgment is to announce to the world that “Judge Nicholson is a political supporter of a politician by the name of Jacob Zuma”.
Harms DJP first showed his hand when he was questioning Zuma’s counsel during the hearing of arguments. Adriaan Basson of Mail & Guardian (28th November) reported that during the course of grilling Zuma’s counsel regarding ‘political meddling’ findings Harms DJP said that “Nicholson wasn’t doing Zuma any favours, although he might have thought so”. Not so long ago I expressed my disquiet about what Harms DJP was reported to have said. On 28th November, under Prof De Vos’ blog “another day, another Zuma Court Appearance” this is what I had to say:
“… If it is true that Harms DJP made this comment in the context it is reported – it is very unfortunate. This comment is pregnant with very dangerous sarcasm and inappropriate attack on Nicholson J’s motive for his findings. It is well for a higher court to criticise the judgment of a lower court. But to venture into speculations about the motives of a judge of a lower court in making a particular finding is, especially in a politically-charged case like this one, inexcusable.
The import of Harms DJP’s alleged comment is that “Nicholson J is mistaken if he thought he was doing Zuma a [political] favour by finding that there was political interference – because I will overturn that decision and undo that favour”. Harms DJP is doing to Nicholson J the very same thing Nicholson is accused of doing to Mbeki – casting aspersions to a person in his absence!…”
In his judgment, after openly acknowledging that his judgment may be used to score political points (paragraph 8), Harms DJP continued to impugn Nicholson J’s integrity, albeit in a subtle speculative manner. Harms DJP’s ‘political scoring’ attack on Nicholson J is glaring from, inter alia, the following passages:
“[15] It is crucial to provide an exposition of the functions of a judicial officer
because, for reasons that are impossible to fathom, the court below failed to adhere
to some basic tenets, in particular that in exercising the judicial function judges are
themselves constrained by the law. The underlying theme of the court’s judgment
was that the judiciary is independent; that judges are no respecters of persons; and
that they stand between the subject and any attempted encroachments on liberties
by the executive (para 161-162).7 This commendable approach was unfortunately
subverted by a failure to confine the judgment to the issues before the court; by
deciding matters that were not germane or relevant; by creating new factual issues;
by making gratuitous findings against persons who were not called upon to defend
themselves; by failing to distinguish between allegation, fact and suspicion; and by
transgressing the proper boundaries between judicial, executive and legislative
functions.” (my emphasis)
Put differently, Harms DJP is saying, contrary to what Nicholson J espoused in his judgment, he did not show that he acted independently and that he is no respecter of Zuma.
“[16] Judges as members of civil society are entitled to hold views about issues of
the day and they may express their views provided they do not compromise their
judicial office. But they are not entitled to inject their personal views into judgments
or express their political preferences. To illustrate the point I intend to refer to some
instances where the court below in my view overstepped the limits of its authority.”
Sharing a drink at a pub Harms DJP would have put it thus to Nicholson J, ‘thanks for telling us about your personal views and your political preferences, but in doing so you have compromised your judicial office’.
Based on Harms DJP’s judgment, the public at large and the politicians in particular cannot be blamed for harbouring thoughts that our judiciary is susceptible to political influence. I think it is the noble duty of our higher courts to preserve the integrity and independence of the judiciary even when criticizing judgments of the lower courts which appear to be politically motivated.
Is Harms’ attack on Nicholson impregnable?
If I were Harms DJP, after turning on my TDM (Total Destruction Mode), I would have made sure that each and every criticism of Nicholson J’s judgment is justified and well researched. However, I doubt if Harms DJP himself did not change the rules of the game by playing the man instead of the ball.
In paragraph 33 Harms DJP criticizes Nicholson J for overstating, without qualification, the position that there should not be relationship between the NDPP and the Minister in so far as his decision to prosecute or not to prosecute. Harms DJP is being gratuitous! Nicholson J did qualify his comment by stating that “…certainly in so far as his decision to prosecute or not prosecute…” there should be no relationship between the minister and the NDPP. Unless one pretends to be naive, it is clear what Nicholson J is saying: the Minister should not interfere in the NDPP’s decision to prosecute or not to prosecute. In paragraphs 88 to 90 Nicholson J clearly shows that he is alive to the acceptable ‘relationship’ that should exist between the Minister and the NDPP. Ironically, Harms DJP acknowledges this in paragraph 37 of his judgment!
In paragraph 35 Harms DJP accuses Nicholson J of twisting the law by stating that a decision to prosecute is an administrative action to which the audi principle applies. Again, Harms DJP is putting words into Nicholson J’s mouth and paints him as a judge who does not understand the law in this respect. To illustrate that this criticism is disingenuous to say the least, I can do no better than quote from Nicholson J’s judgment:
“63. PAJA excludes the Court’s right to review a decision to prosecute. Does this ouster provision preclude this Court investigating a defective procedure which preceded the making of the decision? Assuming the right of an accused to make representations, would this oust the right of the Courts to review a failure by the NDPP to afford such a right? It should be borne in mind that a review is essentially a court procedure aimed at
inadequacies in the process and not the merits of the decision.
64. The decision taken to prosecute the applicant would be one in terms of section 179(5)(d) of the Constitution which is one taken, after consulting with DPPs and taking representations from the accused inter alia. On this hypothesis the decision by Mr Pikoli and his successor Mr Mpshe was not such a decision taken after consulting such persons and it falls outside the provision precluding the Court’s review powers. Put differently, the jurisdictional facts that should have preceded the making of the decision, were consultations with the DPPs and the right of the accused inter alia to make representations. Once these jurisdictional facts were absent the decision ceased to be one in terms of section 179(5)(d) and became justiciable under PAJA.” (my emphasis)
From the above it is clear that Nicholson J understands that in general a decision to prosecute is not an administrative action reviewable under PAJA. He went on to explain that in Zuma’s case he was not dealing with a decision to prosecute referred to in PAJA because certain procedural issues (inter alia, representation by the accused) were not complied with. Then he concluded that due to failure to comply with the procedural prerequisite this decision to prosecute was justiciable under PAJA. Nicholson J may have been wrong in his conclusion but it is unfair to state that his (mis)understanding of the law is that in general a decision to prosecute is an administrative action to which audi applies.
Another low blow to Nicholson J!
“[42]…And although Mr Zuma perceived a political plot behind the Pikoli and Mpshe decisions, he did not say that the Ngcuka decision was part of the plot. The trial judge’s later statement that Mr Zuma maintained that there was a strategy to prosecute Mr Shaik and, when he was convicted, to dismiss him as Deputy President, does likewise not appear from the papers (para 196).”
In the above quote Harms DJP is, with respect, being economical with the truth. In paragraph 154 of the founding affidavit, Zuma stated that:
“the only reasonable inference to be drawn is one of a grim resolve, irrespective the facts and circumstances, to prosecute me and so prevent my Presidency since the earlier strategy to denounce me in public as a crook did not have this desired effect. This will be addressed in another application if needs be.” (my emphasis)
Zuma’s complaint about Ngcuka’s decision, as part of a political conspiracy, is put even clearer in paragraph 85 of his answering affidavit in the Postponement Application before Msimang J (these papers were also before Harms DJP):
“85.
This was highly prejudicial to me and the office I then occupied as
Deputy President. What it was was character assassination of the first
order. I was publicly pronounced guilty in the media but only the lack of beyond reasonable doubt evidence precluded my prosecution with
Shaik.
86.
I took this matter up with the Public Protector who found in clear terms that my constitutional rights had been infringed.
87.
I further contend that the inference is irresistible that this was a
deliberate attempt to poison the minds of the public. There was no
need for such pronouncements – they were meant to prejudice and they did. I say so inter alia because of the history of the matter.” (my emphasis)
Harms DJP also dropped the ball in paragraph 42 when he asserted, inter alia, that Zuma had never accused Maduna of having acted improperly whether in connection with the Ngcuka decision or otherwise. This is the same Maduna who, at the same media conference with Ngcuka, had stated that “it was a ‘sad day’ when the NPA says a deputy president has a case to answer” (paragraph 37 of Zuma’s answering affidavit in the Postponement Application). Again, this is the same Maduna whom the Public Protector found to have acted improperly by not co-operating with him in the investigation of Zuma’s complaint about Ngcuka’s infamous statement! I believe the Public Protector’s findings were referred to and were before Nicholson J and, by implication, before Harms DJP.
All I can say is to repeat the old adage that if you leave in a glass house don’t throw stones!
Brilliant post Bons. On reading and re-reading of both judgments I have come to similar conclusions. Harms has, on many accounts, set up a straw man version of the Nicholson judgment and proceeded to knock it down with such ferocity that I personally believe that it casts serious doubts on his motives.
Perhaps another example form the Harms judgment:
‘But the term ‘prima facie evidence’ has more than one connotation and may mean, as Mr Ngcuka conveyed, that there may be evidence of the commission of a crime which is nonetheless insufficient to satisfy the threshold of a reasonable prospect of success, especially if regard is had to the burden of proof in a criminal case.[44] Although corruption involves two persons, the fact that the one may be guilty does not mean that the other is also guilty because the intention of each party must be decided separately, and evidence that may be admissible against the one may not be admissible against the other.[45] In other words, the fact that Mr Shaik was found guilty does not mean that Mr Zuma is guilty.”
Yet – from Ngcuka’s affidavit quoted in the Nicholson judgment:
“Bribery, as a common law offence, or in its statutory form, under the Corruption laws, is a bilateral offence. It cannot be committed by a person alone. In the papers reference is made to an affidavit in prior proceedings by Mr Ngcuka in which he says ‘At the time when I prepared my announcement, I was in possession of a draft indictment against, inter alios, Schabir Shaik. In this indictment, reference was of necessity made to his relationship with [Mr Zuma] and the bribe agreement with Thetard. This indictment spelled out, far more eloquently than my statement, what was clearly a prima facie case of corruption against [Mr Zuma].’”
Harms suggesting, nay speculating, that Ngcuka, a lawyer by profession, is not being clear or may be using the term sort of loosely when he uttered the words “what was clearly a prima facie case of corruption” ?
bongs et ozoneblue – As jy jouself vir ‘n toffie uitgee, moet jy verwag dat daar aan jou gelek / gekou sal word. … Nicholson J drew a Bulls-eye on his own behind; and, if someone throws darts at it, he shouldn’t cry: “Ouch!”
Bongs – Remember that some of the things Nicholson quoted were dropped by the Zuma team beforehand in chambers. You yourself said that Nicholson J would not have referred thereto had Trengrove not applied for an order of costs. Now, if he had dropped the allegations, because he did not have proof (in motion proceedings) to back up his version, he did not “say” that, and Nicholson J couldn’t have relied thereon. But, in any event, even if he had ‘said’ it in his papers, mere suspicions weren’t enough for Nicholson J to decide motion proceedings on. Remember – motion proceedings are decided on the law – not on a balance of probabilities.
Why all this attention on Harms? There are 5 judges there, the other 4 didn’t sit around and drink coffee while poor Judge Harms furiously applied his mind and then drafted the verdict.
If you imply that Harms missed the point, dropped the ball, or anything to that effect, you’re actually saying that five very astute legal minds buggered it up…something I find difficult to believe.
Mouse,are you saying that 2 wrongs make a right or are you debating the essence of my post which is the impact of Harms’ judgment on the judiciary and examples of where he made unfounded criticism of Nicholson’s judgment?
The Big Slipper, the other five judges concurred in the judgment of Harms DJP. On the examples I gave where I argue that Harms dropped the ball are you able to argue otherwise?
Bongs – I’ve survived similar scathing attacks from above, but I deserved it at the time. Nicholson J practically invited being thrashed, and he got it. I don’t think Harms J dropped the ball even once. He was spot on all the time. … But, even if he did (which I don’t concede – ‘civil law jargon’), he focussed on the game and the rules of the game until the end. You, as a lawyer, should know, a trial is not a game, and one does not focus on how many mistakes the other side makes, and how many right moves you make. One focuses on the rules and, in the end, the points difference is what matters. Ha … got you confused there! Nicholson J gave himself out as the ‘expert’ (or so he sounded and looked when he handed down his judgment on national TV)- and he should really have been. But he was a mere ‘apprentice’ (or so he sounded and looked when he handed down his judgment on leave to appeal on national TV – he even stammered once or twice). Now there, I’ve said it.
Furthermore four other SCA judges (I will not mention the racial break-down) concurred with Harms DJP. Would’nt one have expected, at that level, that, if Harms DJP was totaly out of line, and we should’nt even debate whether he has higher aspirations – because he would be dumb if he has, at least one of them with a higher calling would’ve dared go against him, albeit only to say that some of his criticisms were unfounded.
The SCA has been scathing of Judge Nicholson for finding that there could have been a conspiracy against Jacob Zuma. However, some reports suggest that Judge Nicholson was compelled to make a decision on this (e.g. http://www.armsdeal-vpo.co.za/articles11/interference.html). Are these reports incorrect?
No I am not – I am not a lawyer, and do not unfortunately have time to study the examples you give.
However, I’m not sure that I see the point – even if Harms was a terrible judge (imagine, for example, that he was inclined to grant litigants he was moonlighting for permission to sue his colleagues – shock horror gasp), he sits on a bench with four other judges precisely to ensure that the possibility of a mistake is mitigated as far as is possible.
To say Harms made an error in the judgement under discussion would be to imply that the full bench of the SCA all came to the same erroneous conclusion as him, and I cannot fathom that. Again, I refer only to SCA judgements, specifically the recent Zuma judgement, which was decided by Harms and the other 4 judges.
murray // Jan 16, 2009 at 8:46 pm
Correct.
“The NPA’s persistence in pursuing its substantive striking out application directly brought this about,” Hulley says in his Constitutional Court papers.”
Harms stated that Nicholson should have struck those allegations off Zuma’s founding affidavit on demand of the NPA because they were irrelevant. According to Harms, Nicholson spend to much space in his judgment on the reasons why he would not strike them off. On purely technical legal ground Harms appears to be correct : but I think Nicholson may have had justice on his mind.