“Judges of appeal are generally disliked. Lower courts dislike them because they overrule them. When upheld, they are upheld for different reasons. Litigants compare them to generals who watch a battle from a hill top quite afar. After the battle they descend slowly down to the battle field; look at the dead with a degree of detachment and administer a coup de grâce to the wounded.”

However “in any system of government someone must have the final say. Under a protected bill of rights, it is supposed to be the Constitution which, incongruously, is the product of a political process and consequently a political document. However someone has to determine what the founding mothers and fathers intended and for that purpose someone has to interpret and apply the Constitution. If it is not the courts, it must be politicians. In other words, someone has to play ‘God’.” In addition, the question arises whether judicial powers “do not give rise to result-orientated judgments. In other words, first determine the conclusion and then seek to justify it”.

President Zuma’s case

In June 2005, Mr Shaik was convicted of two counts of corruption and sentenced to 15 years’ imprisonment, the recipient of the corrupt payments being to Jacob Zuma while he was Deputy President of South Africa. “It was in effect found that there was a generally corrupt relationship between him and Mr Shaik” and although he had not himself been in the dock, he was relieved of his post as Deputy President, “on the theory that Caesar’s wife should be above reproach”. A few days later it was announced by the national prosecutor that Mr Zuma would be indicted on matters that mirrored the Shaik counts. When the matter came up for trial, “the prosecution applied for a postponement which was refused. When the prosecution indicated that it was not ready to proceed, the court struck the matter from the Roll”. 

The charges were revived, a few days after the African National Congress (“ANC”) elected Mr Zuma its presidential candidate. The new indictment had 18 main counts of “racketeering, corruption, money laundering, tax evasion and fraud” based on the material in the Shaik trial, but “the facts and circumstances differed materially because the evidence against Mr Zuma had become more compelling and the legal impediments which it said had existed in charging him had been reduced”. The use of search warrants had produced some “93,000 additional documents”. Mr Zuma challenged the discovery process throughout in the courts, “mainly unsuccessfully”.

The trial did not start on the appointed day because of the defence application to set aside the indictment as bad because Mr Zuma had not been invited (as, he alleged, he had a right or reasonable expectation to be) “to make representations before the decision to charge him was made”. Mr Zuma “had never asked to be heard” but he submitted that he had a “right to be invited”. There was no application then “for a permanent stay on the grounds of unreasonable delay”.

At the same time, the Constitutional Court judges “were accused by the Secretary General of the ruling ANC of being part of counter revolutionary forces trying to destroy Mr Zuma. Its Youth League went further, stating that it would kill for him and would intensify the struggle to eliminate the remnants of the counter-revolution, which include all those who wanted to block Mr Zuma’s ascendancy. The demonstrations in court were not for the faint-hearted”. There can be little doubt that Mr Zuma believed that “there was a conspiracy to use criminal proceedings to prevent him from becoming President”. This is mentioned in his court papers “as a matter of background”.

The ruling of the trial judge “in my court’s view” “changed the rules of the game” in that he “created his own conspiracy theory and found members of the conspiracy including the then President, Mr Mbeki and his whole cabinet”. Mr Zuma had never alleged this but “it is generally believed that the ANC’s decision to ask Mr Mbeki to relinquish the Presidency a few months before the end of his term was based on the findings of the High Court about Mr Mbeki’s machinations” in the Zuma case.

The SCA confined its judgment to “whether the findings relating to political meddling were appropriate or could be justified on the papers”. It was found that the trial judge had, among other things created “new factual issues”, made “gratuitous findings against persons who were not called upon to defend themselves”, failed to distinguish between allegations and suspicions, and transgressed “the ‘proper boundaries between judicial, executive and legislative functions’.”

“The governing party announced that it would seek a political solution to the matter.” The acting National Director of Public Prosecutions, who had told us, on oath “that there were strong grounds for prosecution”, withdrew the indictment. He “quoted literally and liberally without acknowledging his source, from a Hong Kong judgment to justify his decision.” In fact, that had been reversed on appeal. The Director quoted from the SCA “that the prosecution may not use its powers for ‘ulterior purposes’; but he allegedly omitted the explanation and qualification that the motive behind a prosecution is irrelevant; and that it will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent.”

The Hlophe case

While the Constitutional Court was deliberating over the appeal from Mr Zuma, Judge Hlophe (“the respondent”), the judge president of the Cape High Court, visited “an acting Constitutional Court judge who concluded (some time after the visit) that he had attempted to influence him to find in favour of Mr Zuma. Knowing that the respondent intended to visit another judge later, the initial judge warned his colleague of the possibility that the respondent might repeat his attempt. She, too, concluded that the respondent had sought to influence her. Sometime later the alleged attempt was conveyed to the other members of the court who eventually agreed to lodge a joint complaint of judicial misconduct against the respondent with the Judicial Services Commission (“the JSC”), based on the information provided by the two justices”.

“A media release” soon followed. However: “(a) the judge was not appraised of the allegations or their source; (b) he was not asked for his version or comments; (c) he received no effective prior notice of the intention to lodge the complaint; and (d) he was not told of the intention to issue a media statement”. Judge Hlophe “launched a counter-offensive” “charging the justices” of “violating his rights” by releasing the public statement before filing the complaint. His case was that the justices “while acting institutionally ‘as a court’ when they laid the complaint and issued the statement, should have given him a prior hearing”. The judge at first instance found that the judges had not been acting as an institution and refused leave to appeal against that finding.

When the matter came to the SCA it was confined to two questions: “whether the appellants, as justices of the Constitutional Court, were obliged in law to afford the judge, because he is a judge, a hearing prior to laying the complaint” and “whether having lodged the complaint they were obliged in law to keep that fact confidential”.

Sitting as a panel of nine rather than the usual five, the SCA found that we “could not understand how the High Court, having found that the justices had not acting institutionally had as individuals the duty to give the judge a prior hearing”. Once they had not acted institutionally the “cause of action had fallen away”. If they were not acting as a court, “the fair trial provision did not arise and since they did not act as an administrative body the administrative justice provision could not apply either”. The judge’s counsel argued that “it is always unlawful for a judge to allege in public that another judge stands accused of serious misconduct and can never be justified, even if the allegation is true and the publication is for the public benefit”.

Subsequently, proceedings before the JSC were postponed first when the judge “terminated the mandate of his lead counsel” and then when a second lead counsel “withdrew from the case”. “When asked by the JSC for a statement the two justices replied that they had not laid a complaint and did not intend to lay one and they were not prepared to make a statement. They later recanted, joining with the others, which raised the question whether they had been subjected to some measure of pressure and whether they had acted professionally in failing to assist in professional disciplinary proceedings”.   

How often “is judging formally irrational because it jumps to the conclusion upon the emotional evaluation of the particular case? More often than we care to believe—and not only in young democracies, I would imagine”.