Thursday, September 25, 2008

Judge Nicholson: "An appalling judgment"

Judge Chris Nicholson's judgment is shockingly wrong at so many levels.

On the merits he comes to the right conclusion: Mr Zuma is entitled to make representations in terms of the Constitution. However, he gets to that conclusion via the wrong reasons. As James Myburgh says in "A Trojan Horse judgement?" (see here), Judge Nicholson's reasoning is obscured by a welter of rambling irrelevant doctrine.

The true reason for his decision is indiscernible. Does the right to make representations arise from the Constitution, the common law, the Promotion of Administrative Justice Act, an agreement with Bulelani Nguka or the doctrine of legitimate expectation? Nicholson explores all these possibilities (most of which are nonsense), seems to accept them all and then comes to no clear conclusion.

It is a shocking judgment. If it were an undergraduate Constitutional Law essay, I would give it a C-. The correct answer is simple: the right to make representations arguably exists in section 179 of the Constitution; because Mr Zuma was denied the right, his constitutional rights have been violated therefore the court has the power under section 172 of the Constitution to do what is just and equitable. It would be just and equitable to stay (not invalidate) the prosecution until such time as Mr Zuma has the opportunity to make representations and the NPA properly considers them.

As for the inferences the judge draws regarding President (now Ex-President) Mbeki - they are totally unsustainable. The evidence he relies on as his factual substratum is woefully inadequate and the inferences he draws (to find that our Head of State has committed a criminal offence punishable by 10 years imprisonment) are not the only reasonable inferences to be drawn from those facts. Indeed they are barely plausible.

Consider that this judge has probably sent people to jail for long periods, and we should be very worried. A more spectacular instance of judicial incompetence one would struggle to find. And this has brought down our president!!!

The flawed method of this judgment and its incorrect application of legal reasoning and doctrine, when revealed in the fullness of time, will impact negatively on the legitimacy of the judiciary.

But worst of all there was no reason at all to embark upon the inquiry. All that was required was a two-page pre-trial ruling giving Mr Zuma the right to make representations. By descending into the political arena, Judge Nicholson does exactly what he accuses Mbeki of doing: breaching the principle of the separation of powers. Judicial grandstanding and hubris at its worst!!!!!

The country needs to understand that Judge Nicholson most likely got it seriously wrong.

This is an edited version of a comment posted by "Bill" September 22 2008

0 Opinion(s):