The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
In the recent Financial Mail Professor Robin Palmer, director of the Institute for Professional Legal Training, University of KwaZulu Natal, suggests that those who have criticised the judgment of Judge Chris Nicholson in the Zuma case have perhaps been hypocritical.
He points out that weeks before the Zuma case, Nicholson and judge Kevin Swain presided over a challenge by the City of Cape Town and the Democratic Alliance over the legality of the Erasmus Commission set up by ANC Western Cape premier Ebrahim Rasool and that the court found that not only was the appointment of a sitting judge (Nathan Erasmus) to chair the commission unlawful and invalid, but that Rasool’s motive had been an improper attempt to embarrass the DA.
The judges went further, finding that Rasool had unlawfully obtained information discovered in police search and seizure operations from the province’s police commissioner, Mzwandile Petros. The effect of this judgment was that the premier misused the judiciary and the police to set up an illegal commission to embarrass a political opponent. Yet there was no outcry accusing Nicholson and Swain of meddling in politics or going beyond their mandate.
The framing of the issues in Nicholson’s Zuma judgment appears to have required a similar contextual approach, as Zuma’s papers made the alleged political motives underlying the decision to prosecute him issues for the court to decide (though it appears this aspect will be disputed by the NPA on October 22). It may well be that a court of appeal finds that Nicholson erred in making certain factual findings, or that he was legally prohibited from even considering the allegations of political interference.
Whatever the eventual finding, in both these cases Nicholson was prepared to confront the elephant in the room: the virtually incontrovertible evidence of widespread and systematic abuse of crucial public offices for factional party-political advantage. In doing so, he has done us all a favour.
Palmer might have a point. The difference between the response of commentators to the Zuma judgment on the one hand and the Rasool judgment on the other, is striking. In both cases the judgment went further than the technical legal point before the court and addressed what the judge saw as the political meddling inherent in the case.
I happen to think both judgments went too far and that judgments like these open up the judges involved to charges of political meddling and overreach. In the Rasool case, the judgment made a finding about the motive with which Rasool had appointed the Commission of Inquiry without the benefit of oral evidence and cross examination of witnesses. In the Zuma case, the judgment did exactly the same thing regarding the interference with the decision to prosecute Zuma.
The judges might well be right on both points – who knows? – but should they make findings on such politically charged matters without having heard proper evidence on these matters? I think not. (although the finding in the Rasool case was more pertinent to the legal issue at hand so it might be slightly more excusable.)
I therefore think Palmer is wrong in suggesting that it was acceptable for Nicholson to have made pronouncements on issues that had nothing to do with the law and everything to do with party politics. For example, Nicholson’s comments that it was unfair and unjust of then President Mbeki to fire Jacob Zuma as Deputy President was utterly uncalled for and completely irrelevant for the decision of the legal issues.
The hiring and firing of the cabinet is the prerogative of the President and has nothing to do with the judiciary. Although we might all have political views on this issue, it has absolutely nothing to do with the law and a judge should not poke his nose into such matters – otherwise he might endanger the legitimacy of the judiciary and drag himself and the judiciary into the party political arena. In the long run this would be fatal for the independence and impartiality of the judiciary.
Just as the firing of Thabo Mebki was a political decision open to political debate, but beyond the jurisdiction of a court, so the firing of Zuma was a political decision beyond the reach of judges. If one is a banana one must be prepared to be eaten, so a politician must not complain to a court when he or she is fired – no matter how unfair he or she might think this might have been. Politicians do not have job security in a democracy and that is a good thing. Get over it and move on.
That is also why I though Archbishop Emeritus Desmond Tutu was talking through his nose when he bewailed the firing of Mbeki as a terrible day for South Africa. We might agree or disagree with Mbeki’s firing, but that is how politics work and there is nothing earth shattering about it. Tutu’s reaction thus seemed completely over the top and betrayed a lack of understanding of how politics work in a democracy.
Those who criticised the Nicholson judgment for political meddling should – if they were to be consistent – therefore also have to criticise the judgment in the Rasool matter. Very few have. Maybe this is because the pundit class agreed with the outcome of the Rasool case but not with the outcome of the Zuma case.
Palmer may therefore have identified a rich strain of hypocrisy amongst the pundits and that would not be a bad thing.BACK TO TOP