Monday, January 12, 2009

The "sober" judge

The NDPP's appeal against judge Nicholson's judgement in the Jacob Zuma case has been granted by the Supreme Court of Appeal (SCA) and Jacob Zuma can be charged by the NPA again. In arrieving at their decision the SCA was scathing,, was contemptious (ba monyetse) of the decision reached by Nicholson. The SCA basically found that the judge's decision had no basis in law, procedure, accepted conduct from judicial officers and had no logic at all. His decision basically transgressed all accepted procedures and principles in adjudicating legal issues.

This is summed up neatly by analogy at paragraph 13 of the judgement that "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 redcarded not only players but also spectators." (emphasis mine). What the SCA seem to be saying in this regard is: Is this guy stupid or what? Can a person really be this stupid to contradict himself and kick all the rules of common sense out of the window?

The court went even further to remind judge Nicholson what his duties ought to be. But before doing that they went for his jugular and said "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."What this seem to be saying is: Is this guy really a judge? Can a judge of his seniority and experience really not know what procedures and practices need to be followed in dealing with this matters? What drove this guy to come to such a decision?

On lessons on how to conduct motion proceedings the court stated that the judge has "applied a novel approach to motion proceedings which, if left undisturbed, may serve as a dangerous precedent." This means that he has departed from established and accepted practice and came up with his new (read kak!) approach that is dangerous for the legal practice and has never been heard of. The judgment is fairly long and the major part tears into judge Nicholson's conduct and his bizarre ruling, Counsel for Zuma is not spared either. The court has said that judge Nicholson instead of deciding on the legal issues before him went on about his "own conspiracy theory" and decided on issues "not.... advanced by Mr Zuma."

What one is left thinking is what was this "sober" judge thinking. Sober comes from the pronouncements by the ANC that this was a sober judge and judges of the constitutional court are counter revolutionary. And Malema went on to say that judges of the constitutional court make their decisions in shebeens (we know that shebeen refers to a drinking hole in the townships patronised by blacks). You draw your own conclusions...

Zuma's options of using every available legal avenue to quash the charges are getting slimmer by the day. Only those 'counter revolutionary judges' in the constitutional court are remaining now and one supposed that Zuma is going to apply for their recusal when he appeals the SCA decision. The only other way is for him to change the law when he becomes president
(if he becomes president) but with COPE on the horizon they will not have the requisite majority to change the law.

Zuma might be the presidential candidate for the ANC but with COPE on the horizon it is interesting to contemplate whether the ANC will garner the sufficient majority to elect him the president of the country.

In my final analysis the decision of the "sober" judge are coming to haunt the ANC in a very significant way. In his solomonic wisdom of trying to decide for the natives, the sober judge was very drunk in his soberness. Even if a political solution is found for these charges that won't go away the "sober" one has made it even more difficult for the "anointed" one to ascend that throne.


  1. I don't know about you but this soap opera has gone on for far to long

  2. Moremogolo, it was a pleasure to read Harms' judgment. You will agree that there has been a string of rather disturbing judgments from our courts lately and this judgment has restored the faith in the judiciary. I am of the firm view that the courts are our last line of defence and we should protect them. As for the ANC, I am not as confident as you are, judging on the apparent support it got in the Eastern Cape. Keep writing friend.

  3. Yet again these neo-liberal judges prooves how they are not immuned from political pressures of the day. It is interesting how some of these judges have been linked to COPE,eg Chief justice and many more. How do we begin to believe that they could be impartial and agree with what you call a 'sobre judge'in his inference that political meddling was possible,most particularly that it could not be rule out.

    We have to agree that judges are entitled to make what is called 'Obiter Dictum'. I t appears from the SCA that they deliberately took their eyes away from the ball and forgot this practice. What is meant by 'Incomprehensible conclusion' by Nicholson. This was suppossed to be remark in passing. He explained why he did not rule that posibility of political meddling, but could not say without any contestation that it was the case. So why he is taken to a task about that remains to be seen.

    Gab, why you keep on believing that COPE will do harm to the ANC? The turn up at Eastern Cape suggest otherwise.

    People have been saying the ANC sought political solution to JZ.s situation, when nothing of the kind was happening. At the time he brought series of applications in court of laws,but hey that was construed as attempt to solicit political solution. I can confirm now that political solution is necessay at this stage. I repeat that the 'Progressive Cadre' who will succeed Vusi Pikoli soon, will adress this issue. That will be a political solution people. I pause


  4. Melford, you should read the judgement and a specially the part on how the judge threw all the rules of the court out the window. I thuoght that obiter dictum should only be on legal issues that are before the court. Nicholson's obiter, if it is, was on things he was not asked to pronounce on. Lets leave emotions out of this and view the merits of the judgement.

    Whether Cope will do harm to the ANC or not remains to be seen, but it cannot be ignored.

    This soap opera, as Aquilogy calls it, is far from over. And we await to see if your predictions will come true...

  5. No emotions Gab,but the political dynamics currently propells me to recall my hey-days as a political activist. I have since then learned that there is nothing called 'Political neutrality' . We may say whatever we like,but these Judges are not immuned from owing political allegiance at given times. In high profile cases of this nature,there is never fairness and judges tend to be guided by emotions. Its true Gab.

    Granted, Nicholson may have overstepped the mark,but the SCA seems to have read too much of his inference of political meddling and throwing away of the rules of the court. The SCA did not have any business in attacking him like a criminal people.Its was to merely adress issues of law and leave this criticism What about his( Nicholson) creditablity now. The ramifications would be that none would regard him as a reputable judge post yesterday,s judgement.

  6. Let me quote you a passage from the judgement "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." (Paragraph 16 of the judgement).

    As far as I am concerned judge Nicholson brought it on himself, no symphathy from this quarters.

  7. His( Nicholson) judgement got mbeki fired,an ammunition the ANC wanted. The question now is, whether mbeki feels vindicated enough to let this matter rest. I am just not certain whether there exist legal remedy for mbeki against Nicholson( kindly advise ).

    I have selectively read the SCA judgement against what will be the next line of march for the ANC. I have noted your assertion in another forum where you are accusing JZ of being opportunist. You having alleged that JZ only want to be in office for a while and enjoy benefits of former president. What happened to presumption of innocence until one is convicted? Neverthelis what i would want to bring across is that is noted that the NPA cherish an idea of having him being prosecuted while we are busy voting. I guess the ANC has made its preference on presidential candidate categorically clear,but that does not exclude going back to the drawing boards and interogate their options. He said himself that if convicted ,he will step down.

    On your posting immidiatley preceeding this one,about views of the judges as members of the society. Do you honestly believe that all judgements given are without influence of one,s personal views of specific situations. I doubt that very much.

  8. Sphiwe M. here..

    Not being from a law background, a lot of the arguments below seem to go right over my head, although I would like to believe that the crux of the ruling was around the Judge from the lower court passing judgment on issues that were not even on the table in the first place, and in the process taking liberties/being very creative with the interpretation of acceptable legal aspects/code/procedures.

    That aside, it only dawned on me that this sad episode in the movement's history has at its core, the "class" divide that has always existed within the movement. I stand to be corrected on the facts, but it appears that the movement has being led for the past century by the "black elite"... the mission school educated (from the likes of Lovedale, the "Eaton of Africa") type, that went on to enroll and earn degrees from the likes of Fort Hare, Wits or even international universities... in many instances, the "black Englishmen more English than the English themselves"... priest, teachers, medical doctors, etc. If not, then they had some claim to being "royalty", and foregoing the comforts that such claims brought for them to take up the fight on behalf of their less privileged fellow black South Africans (backward rural peasantry, disorganized urban proletariat) was their leadership ticket. Yes, I may have taken some liberties and over-generalized a little bit.

    But to illustrate my point, take a look at the lineage since formation (an extract):
    1912-17: JL Dube, , US university degree, teacher, "businessman"
    1927-30: JT Gumede, mission-schooled, teacher
    1952-67: A Luthuli, mission-schooled Adam's College, teacher, "chief"
    1967-91: OR Tambo, mission-schooled St Peter's College, Fort Hare, teacher/lawyer
    1991-99: RN Mandela, mission-schooled, Fort Hare, lawyer
    1999-2008: TM Mbeki, mission-schooled Lovedale, UK university degree
    2008-?: J Zuma, rural peasant background, formal education - primary school to standard 2/4?

    If indeed, the ANC is the political home of the ordinary masses, then JZ is the first leader to come from within this mass. Yes, there are corruption charges hanging over his head. Yes, some of his peasant-type views has resulted in others questioning his judgment. Also interesting is that, the birth of COPE was around personalities... "we cannot be led by a 'fool'" they proclaim. Let me be controversial for a moment: how different is this stance from that of the former colonial masters, "we will never be ruled by a black man; too backward, too barbaric"? I'm only asking the question here, so do not shoot the messenger. Interestingly, the majority in this very network will probably identify more with the long lineage of ANC leaders before JZ, well-educated, with university degree(s)... finding the idea of being led by someone who failed to excel in academia repulsive. When the people proclaimed "The people shall govern", they never meant nor intended to have it interpreted as "The people with a good academic backgrounds, that excel in their professions of choice, that speak the Queen's language fluently through their nostrils, from privileged background, of royal blood, shall govern".

    Let us stop this madness (read: COPE), let the people determine their own future even if in your "learned" opinions would only result in doom and gloom. The correlation between leadership and academia is a poor one, else all important leadership positions would have been occupied by professors. JZ is a leader chosen by the masses, it is about time that the masses take their rightful place at the forefront of the struggle to self determination. If we think they are not capable of it, then we are no different to our former colonial masters (we become "more English than the Englishmen themselves").

    As we continue to provide commentary on what 2009 will hold for the nation, I urge all of you to introspect... take a step back and ask one's-self the question: how much of this unconscious class bias is clouding my judgment and opinions on matters relating to the leadership of the movement? Only if that commentary passes the litmus test, then pen it... if not, think carefully whether it's worth penning in the first place.

    It is just by coincidence that it is JZ, it could just as well have been another peasant....

    That said, I would like to wish Msholozi well in his legal battles. He always contended that he wanted his day in court, well that day is not far away. Even if he pulls out of the race, after TM.... the masses do not want another one of those know-it-all, intelligent type and aloof leaders. Just a simple person, that will understand our day to day issues, someone that will converse with us in our language, and not talk at us in a language only a few select elite would understand.

    For the masses, aluta continua............