Judge Nicholson leaves President Mbeki with no clothes on

The pronouncements relating to President Mbeki as made by Judge Nicholson in his judgment in the matter pertaining to the president of the ANC, Jacob Zuma, are serious and troubling. Judge Nicholson inferred in his judgment that there had been political interference in the National Prosecuting Authority’s (NPA) case against the president of the ANC. The Judge makes inferences that insinuate and implicate the president of the Republic as having orchestrated a case against Zuma and violated the independence of the NPA.

Judge Nicholson indicated that such interference is a serious offence and any person contravening legislation prohibiting it shall be liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or both such find and such imprisonment. The judge concluded that if such interference was allowed to go unchecked and unpunished they will pose a serious threat to our democratic state.

The opposition has reacted strongly on this judgment. Patricia De Lille, leader of the Independent Democrats (ID) said: “The ID views this as a shocking indictment on Mbeki and his cabinet and lends further weight to the ID’s call for a vote of no confidence in the president and the Cabinet, who must take collective responsibility for this entire debacle,” not letting this opportunity for political point-scoring slip past.

Helen Zille, leader of the Democratic Alliance had previously said, “In a constitutional democracy such as ours, it is untenable for a president (Mbeki) with his track record to remain in office,” after allegations surfaced earlier this year that President Mbeki has interfered in independent institutions such as the SABC and the NPA.

It would be logical to assume that the ANC, given this judgment and its unsavoury findings on the conduct of President Mbeki, may pass a motion of no confidence and seek to remove him from office. This move would be consistent with the decision taken by President Mbeki to relieve Zuma of his duties as deputy president of the country in 2005 following judgment on the criminal case involving Shabir Shaik.

However, such a move by the ANC would be ill-advised and inconsistent with Judge Nicholson’s pronouncement that a judgment in a criminal case against one party is not evidence against persons who were not parties to the proceedings. Therefore, matters raised in this particular judgment should not be used against those who were not party to the court proceedings, including the president.

The above pronouncement is evidence of the number of absurdities in the judgment passed by Judge Nicholson. Based on nonsensical inferences and no concrete evidence to support his claims, the judge concluded it seems improbable that President Mbeki could not have been party to the so-called political mechanisations that bedeviled the prosecution of Jacob Zuma from the onset. Judge Nicholson has certainly been mischievous for repeating what he was critical of, by finding President Mbeki in absentia, guilty of political interference in the prosecution of Zuma and undermining the independence of the NPA.

One would have expected the judge to have arrived at such conclusions given their seriousness based on submissions by those he implicates in his judgment. I cannot fault the judgment on the procedural matters for which the court proceedings were primarily about. The NPA indeed committed serious blunders and atrocious errors of judgment when deciding to re-charge Jacob Zuma. But I have serious reservations on the manner in which Judge Nicholson arrived at his ruling on the question of political conspiracy.

Judge Nicholson in his ruling said, “when a party has peculiar knowledge of a fact he is not for that reason saddled with the burden of proving that fact: peculiar knowledge affects the quantum of evidence expected from the party but does not affect the incidence of the burden of proof. If such party fails to adduce evidence, in other words to transmit his or her knowledge to the court, the inference which is least favourable to the party’s cause may be drawn from the proven facts.”

In proving these “facts” the Judge made his own assumptions and relied on countless references to newspaper articles, statements and comments by made by certain individuals under no oath. The judge used personal opinions, without considering their possibility of bias or factualness, in making a determination of fact in his judgment. This is a dangerous thing for a judge of the High Court to resort to in proving a case against persons no party to the court proceedings; persons who were never afforded the opportunity to make representations on allegations relating to their conduct.

The judgment by Judge Nicholson on persons who were not given a chance to defend themselves in a court of law is “unfair and unjust”. Nothing contained in this judgment on question of political interference and violation of the independence of the NPA is a matter of fact, but pure assumptions that have always been the fuel in this conflagration of allegations of political conspiracy. The judge was reckless and irresponsible to have even entertained these nonsensical allegations, which Jacob Zuma had been unable to prove.

An address by President Mbeki to the nation on these allegations is necessary and urgent. The nation cannot afford to have a sitting president with such serious and damaging allegations made against him.

I find Julius Malema’s optimism on 10 September, given his previous attack on the judiciary and the outcome of the judgment, quite curious. He said, “We believe in that judge (Nicholson) … He looked very sober to us … That’s why we are so convinced that we are going to get a positive judgment.”