Franny Rabkin
13 January 2009
Johannesburg — IN A scathing judgment, the Supreme Court of Appeal said yesterday that the findings of Judge Chris Nicholson of the Pietermaritzburg High Court about political interference by the executive in the work of the National Prosecuting Authority (NPA) were "gratuitous", "inappropriate" and failed "to distinguish between fact and suspicion".
In giving judgment in the NPA's appeal against African National Congress (ANC) president Jacob Zuma's victory in the high c ourt, the d eputy president of the appeal court, Judge Louis Harms, said Nicholson had compromised his judicial office and "overstepped the limits of (the court's authority) in making his findings".
In the high court, Nicholson set aside the NPA's decision to prosecute Zuma because it had not invited Zuma to make representations to the NPA when it reversed a former decision not to prosecute.
Nicholson found that Zuma had a constitutional right and a legitimate expectation to be invited to make representations.
But Nicholson also found that former p resident Thabo Mbeki, former justice minister Penuell Maduna, and the entire cabinet, were responsible for politically meddling in the NPA.
A week after Nicholson's judgment Mbeki was "recalled" as president by the ANC -- a move Mbeki has attributed directly to the judgment.
Harms was careful to distinguish between the truth or falsity of Nicholson's findings and their appropriateness.
He did not say that Nicholson's findings were wrong, but rather that he should never have made them.
This was because the question of political interference was not before his court and had not been argued on the papers.
He said the question before the court was a purely legal one: whether Zuma had a right to be invited to make representations when the decision not to prosecute him was reversed.
The appeal court overturned the whole of Nicholson's judgment and all his orders, but was particularly devastating over Nicholson's findings of political meddling.
Harms said Nicholson had failed to confine the judgment to issues before court "by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions".
In his criticism of the court below, Harms saw fit to remind a fellow j udge of "the functions of a judicial officer".
This was 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 law".
Harms said the independence of the judiciary depended on the judiciary's respect for the limits of its powers.
He said the judiciary was not entitled to "pontificate or to be judgmental, especially about those who have not been called to defend themselves".
He referred to three instances where he said Nicholson had overstepped the mark.
These were where he called for a public inquiry into the arms deal, where he questioned Mbeki's firing of Zuma as d eputy p resident, and his decision to run against Zuma for ANC p resident at P olokwane.
"These matters are not matters of law. They relate purely to political questions, and whether or not one agrees with the learned judge's sentiments is of no consequence. The findings were gratuitous."
He said judges were entitled to have personal views but were "not entitled to inject their personal views into judgments or express their political preferences".
Mbeki had previously, unsuccessfully, tried to appeal the findings in the Constitutional Court. He then sought to intervene in the case at the appeal court. Harms eventually refused the application because Mbeki had no direct substantial interest in the order and had nothing new to add as a friend of the court. But he said Mbeki's application was "understandable" and that he had "ample reason to be upset by the reasons in the judgment".
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