On Monday this week the Supreme Court of Appeal unanimously upheld the National Prosecuting Authority's appeal against Judge Chris Nicholson's decision to set aside the decision by Acting National Director of Public Prosecutions, Moketedi Mpshe, to prosecute ANC President Jacob Zuma. The judgment delivered by Judge Louis Harms, with Justices Farlam, Ponnan, Maya and Cachalia concurring, gave short shrift to the legal basis on which Nicholson had ruled in Zuma's favour.
The real weight of the judgment though was directed at Nicholson for his finding that President Thabo Mbeki (and others) had meddled in the work of the NPA in an effort to frustrate the ambitions of Zuma. The headline of Beeld the following day was "Appèlhof braai Zuma-regter." This aspect of the SCA's judgment, Harms was careful to note, was "not about whether there was political meddling in the decision making process. It is about whether the findings relating to political meddling were appropriate or could be justified on the papers."
To understand why this is important it is worth asking how the press would have responded if Nicholson had simply made his claims as an ordinary individual in, say, a newspaper article. I suspect most editors would have cast a rather wary eye over them. He brought no new or unfamiliar facts into the public domain, and his reasoning was not particularly compelling (see here).
If accepted for publication such an article would probably not have had much impact, and there would have been nothing to stand in the way of other writers robustly critiquing it. It certainly would not have been regarded by the ANC as a sufficient basis to justify the removal of a democratically-elected president from office - even one as intensely disliked as Mbeki was.
Yet, if one looks back at the initial press reaction to Nicholson's ruling on September 12 2008, most newspapers were completely swept away by it. Jacob Zuma had been vindicated, and Mbeki was dammed. The Weekender noted in its editorial (September 13) that "the case was ostensibly about Zuma" and whether the decision to charge him had been taken fairly but, "it was President Thabo Mbeki and some of his administration's most senior members who emerged looking guilty."
On the same day the Saturday Star concluded its editorial by stating that last week "we asked you, our readers, to consider what interest would be best served by the further prosecution of Zuma. Today, we say boldly, it is in no one's interests. Let this matter go now, once and for all."