Franny Rabkin
13 January 2009
Johannesburg — A SENIOR lawyer yesterday said he had never seen such a "vicious" criticism by one judge of a fellow judge as that by Supreme Court of Appeal Deputy Judge President Louis Harms against Pietermaritzburg High Court Judge Chris Nicholson.
In his judgment yesterday overturning Nicholson's order setting aside the National Prosecuting Authority's (NPA's) decision to prosecute African National Congress (ANC) president Jacob Zuma, Harms was unrelenting, saying Nicholson had overstepped the boundary of judicial conduct.
"I have never seen anything like that," the senior lawyer, who asked to remain anonymous, said. "It was really the most sustained attack on a judge I have ever seen.
"The puzzling thing for me is why they had to go so far. "
He said while judges were often criticised by their seniors in higher courts, "to go so far as to set out what constitutes the judicial function to another judge is something I've never seen before".
"If I were in (Nicholson's) shoes, I would seriously reconsider my position on the bench."
Another senior lawyer, who also did not want to be identified, said Harms's judgment was "not unexpected" because Nicholson's judgment "was fundamentally wrong".
But he said he thought Harms's judgment was unlikely to affect Nicholson's career or "detract from his earlier judgments or his role in the fight against apartheid".
"He's still a young judge, with a long career ahead."
When Nicholson was appointed by KwaZulu-Natal Judge President Vuka Tshabalala to decide on Zuma's application, the legal fraternity roundly approved the appointment. He was lauded for being a competent and highly principled judge. His background in human rights and the fact that he was a "new order" judge, appointed in the democratic SA, was also seen to be in his favour.
But when Nicholson's judgment came out, it caused consternation for many in the legal fraternity, despite it being celebrated by many Zuma supporters.
Nicholson's judgment made lawyers uncomfortable because it seemed to turn many established legal principles on their head. Why, the lawyers asked, did he go into questions that were not part of anyone's case and had not been argued? Similarly, his using the constitutional remedy of "reading in" words into the NPA Act, when there was no complaint of unconstitutionality of that act, was seen as bizarre.
"The Supreme Court of Appeal obviously decided that they needed to put it right," one of the sources said .
It is understood that when Nicholson was appointed to hear this case, it was decided he would also be the presiding judge in Zuma's trial -- if it came to that -- and any further prior applications.
That decision still lies in the hands of Tshabalala, who could not be reached for comment.
But NPA sources said that while they did not believe Nicholson was biased or prejudiced against them, they were concerned about him presiding over any further cases involving Zuma. This was because he had already expressed a view on some of the issues that could potentially come before the court.
Business Day's legal source said it was "absolutely out of the question now" that Nicholson would preside over any further matters involving Zuma.
"If he has any sense, he would withdraw immediately."
Another legal source said the fact that Harms gave the Supreme Court of Appeal's judgment, even though it was right, might "lessen its impact somewhat, in that Judge Harms is viewed in legal circles as a remnant of the old apartheid order. He was a judge of that era who failed to express any opposition towards apartheid."
Four other Supreme Court of Appeal judges concurred in the judgment of Harms, but Harms was probably chosen to write the judgment simply because he was the most senior.
The chairman of the General Council of the Bar, Patric Mtshaulana, said it would be "very, very unfortunate for (Harms's judgment) to be criticised because of his past politics". He said Harms was known to have a very clinical approach to law and this had nothing to do with his past politics.
Mtshaulana said Harms's judgment should not affect Nicholson's career. "Judges make mistakes. That is why we have the appeal process."
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