Quote of the week

It is clear that no legitimate objective is advanced by excluding domestic workers from COIDA.  If anything, their exclusion has a significant stigmatising effect which entrenches patterns of disadvantage based on race, sex and gender…. In considering those who are most vulnerable or most in need, a court should take cognisance of those who fall at the intersection of compounded vulnerabilities due to intersecting oppression based on race, sex, gender, class and other grounds.  To allow this form of state-sanctioned inequity goes against the values of our newly constituted society namely human dignity, the achievement of equality and ubuntu.  To exclude this category of individuals from the social security scheme established by COIDA is manifestly unreasonable.

Victor AJ
Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)
15 January 2009

Nicholson a hero of judiciary after all?

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.

SHARE:     
BACK TO TOP
2015 Constitutionally Speaking | website created by Idea in a Forest