JAUNDICED EYE

Hands up, those who remember Chris Nicholson? Briefly feted then comprehensively reviled, he flashed across the judicial firmament and then vanished from public consciousness.

Nicolson is the unfortunate KwaZulu-Natal judge who in 2008 effectively gave former president Jacob Zuma a free pass on corruption and fraud charges. His ruling slated then-president Thabo Mbeki and his ministers for “political meddling” in Zuma’s trial and concluded that successive directors of the National Prosecution Authority (NPA) had acted maliciously. 

Although the judgment was eventually overturned by the Supreme Court of Appeal, by then it was too late. Zuma and his populist cabal had parlayed the Nicholson ruling into a toxic presidency that would run for another nine miserable years before ending in national ignominy and ruin.

The African National Congress, at the time in thrall to Zuma, chose to interpret the Nicholson judgment as declaring Zuma innocent. This was propagandistic distortion, since Nicholson made no declaration on Zuma’s likely guilt or innocence.

The nub of his finding was simply that the timing of Zuma’s indictment, following immediately upon Mbeki’s defeat at Polokwane, was suspicious. Further, that the earlier suspension of the then-head of the NPA, “who was supposed to be independent and immune from executive interference” persuaded Nicholson that “the most plausible inference was that [of] baleful political influence”.

When reversing the decision, the Appeal Bench tore into Nicholson for making gratuitous findings against politicians who had not been given a chance to defend themselves; for failing to distinguish between allegation, fact and suspicion; and for transgressing the boundaries between the judicial, executive and legislative functions of government.

Nicholson’s judicial career sank like a stone. He was pilloried as, at best, a useful idiot of forces beyond his comprehension. Or, at worst, seeking favour by pandering to the Zuma bandwagon.

These were gross calumnies against a jurist whose history demonstrated the opposite. He had previously taken on the apartheid regime at great personal cost. And then, under the new government, Nicholson’s independence was confirmed when he ruled against an ANC attempt to topple the Democratic Alliance in Cape Town, using an improperly appointed commission headed by a High Court judge.

Nicholson’s disparaged judgment of a decade ago is hugely important. Not for the judicial errors that were its downfall but because it identified for the first time a phenomenon that has hollowed out the rule of law in South Africa – the subversion of the prosecutorial function to serve the political masters of the day.

The “baleful political influence” of the executive over the NPA, which Nicholson referred to, was not proved to the exacting standards of the law. But does anyone seriously doubt that Mbeki – be it overtly or with a nudge-and-a-wink – influenced successive NPA heads to either prosecute or withhold prosecution, according to what best benefited him and the ANC? 

The most powerful politicians implicated in the arms scandal were not prosecuted during the Mbeki years, despite evidence of wrongdoing, because it was not politically expedient to do so. Similarly, Zuma, equally implicated in another web of corruption and fraud, was prosecuted not because of wrongdoing, but because he became a political threat to Mbeki.

Zuma’s interference in the NPA process differs from Mbeki’s simply in that he has been unsubtle, with little attempt at camouflage. As Advocate Wim Trengrove argued in the Constitutional Court this week, Zuma used public money to get rid of the previous NPA boss, Mxolisi Nxasana, and replace him with Shaun Abrahams, to minimise the possibility of the charges against him being reinstated. 

“He bullied [Nxasana] out of office by threatening an inquiry into his fitness to hold office and when that did not work, the president seduced Nxasana with an obscene amount of money,” said Trengrove, who is acting for Freedom Under Law. 

There is no direct evidence that Abrahams was Zuma’s catspaw. There are no incriminatory tapes, no trail of brown envelopes stuffed with cash. The Constitutional Court will decide whether Abrahams must vacate his office, most likely, simply on the basis of the kinds of procedural niceties where Nicholson went awry.

But it is actually the broader issue, that of executive interference, that is most important. And there the trail of circumstantial evidence is damning: the repeated failure of Abrahams, until prodded by court rulings, to fulfil his oath of office to prosecute without fear or favour.

The Zupta cronies who plundered the South African state acted with a brazen indifference to the law. They cocked a snook because they were confident that they had immunity, at the highest levels, from prosecution. 

When that protective cloak fell away, with the victory of Deputy-President Cyril Ramaphosa faction at the ANC’s electoral conference in December, so too did the Zuptas. Like cockroaches when the kitchen light is switched one, they scattered for cover.

After years of inaction, the NPA is now belatedly trying to serve arrest warrants and subpoenas. That, of course, has nothing to do with any desire on their part to placate or benefit the Ramaphosa faction, which is now in ascendancy in the ANC. 

“Baleful political influence?” Perish the thought, Judge Nicholson.

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