Some weeks ago, having read an article/opinion piece by Dr Xolela Mangcu, I wrote in response and made my response available to the Weekender in order to provide Dr Mangcu a right of reply as one would in a free exchange of ideas - or not. Having not received a response from the Weekender or even an acknowledgement of receipt and not having Dr Mangcu's contact details, I post the response here, for you the loyal reader of Afro-I-Can:
Some day, when the truth shall out, Judge Nicholson may be vindicated; so concludes an article by Dr Xolela Mangcu, which article was published in the Weekender of the weekend of 17 January.
What form, I wonder, will this vindication take? If by vindication and by the truth finally coming out Dr Mangcu means proof that Thabo Mbeki specifically or the Executive generally, interfered in the prosecution of Jacob Zuma, then with respect Dr Mangcu misunderstood the criticism directed at the learned judge.
As much as there are certain rules of engagement that journalists, commentators and writers must observe, there are rules of engagement that those who ply their trade in the courts have to observe. The current legal battles have been conducted by way of motion proceedings or application proceedings as opposed to trial or action proceedings. The primary difference between trial and application proceedings is that while in trial proceedings evidence is given by individuals in open court who are then cross-examined by the opposing side; evidence in application or motion proceedings is given by way of affidavits.
There are well established rules that regulate how evidence presented on affidavit should be evaluated by the court (read Judge or Magistrate). An applicant commences motion proceedings by filing with the relevant court a notice of application together with a founding affidavit which sets out the facts on which she relies for the order that she asks the court to make. In response to this founding affidavit a respondent will then file an answering affidavit in which he will admit or deny the contents of the founding affidavit. An applicant will then be allowed to file a replying affidavit in which she is restricted only to respond to new matters raised in the replying affidavit and not to raise new matters herself.
Other than the evidence presented to the court on affidavit as set out above, a judge or any presiding officer may not consider any other facts in making a determination. This among others is the bone that the SCA picks with the judgement of Nicholson. The truth or not of the issues relating to political interference is simply of no consequence. Nicholson should not have concerned himself with such matters in the context of the judgment he delivered. JZ stated in the papers before Nicholson that he did not seek to challenge the decisions and that his application did not concern the merits or motives for the decisions. Nicholson himself states in his judgement that political meddling is not a matter that he is required to determine.
There can be no vindication for the manner in which Nicholson conducted himself and the matter before him.
Dr Mangcu accuses Harms, the judge who delivered the SCA judgement of being a positivist (in SA legal history this comes perilously close to “counter-revolutionary”). If only it were a fair accusation. Positivists are those judges who refused to evaluate a law passed by parliament. Who held a view that once a law has been passed, theirs was to interpret and apply such a law. In my reading of the judgement of the SCA, I do not find any evidence of the positivism that Dr Mangcu cautions against. I am open to learn otherwise. Harms, positivist or otherwise, correctly in my view cautions against a judge infusing his political views, opinions or beliefs into the body of evidence upon which he is meant to make a determination. The arms deal may be the most abominable executive decision yet. It was not relevant to the matter Nicholson was required to determine.
The opposing jurisprudence school to the positivist are the naturalists. It does not get more naturalist than the requirement that a person be heard prior to a judgment being passed on her. This rule, known as the audi alteram partem is the most well known of the rules of natural justice. A rule Nicholson completely ignores in his quest to protect us from the excesses of the executive.
To Nicholson’s discredit, he put the fair adjudication of motion proceedings in jeopardy, and for that there can be neither vindication nor redemption.
What form, I wonder, will this vindication take? If by vindication and by the truth finally coming out Dr Mangcu means proof that Thabo Mbeki specifically or the Executive generally, interfered in the prosecution of Jacob Zuma, then with respect Dr Mangcu misunderstood the criticism directed at the learned judge.
As much as there are certain rules of engagement that journalists, commentators and writers must observe, there are rules of engagement that those who ply their trade in the courts have to observe. The current legal battles have been conducted by way of motion proceedings or application proceedings as opposed to trial or action proceedings. The primary difference between trial and application proceedings is that while in trial proceedings evidence is given by individuals in open court who are then cross-examined by the opposing side; evidence in application or motion proceedings is given by way of affidavits.
There are well established rules that regulate how evidence presented on affidavit should be evaluated by the court (read Judge or Magistrate). An applicant commences motion proceedings by filing with the relevant court a notice of application together with a founding affidavit which sets out the facts on which she relies for the order that she asks the court to make. In response to this founding affidavit a respondent will then file an answering affidavit in which he will admit or deny the contents of the founding affidavit. An applicant will then be allowed to file a replying affidavit in which she is restricted only to respond to new matters raised in the replying affidavit and not to raise new matters herself.
Other than the evidence presented to the court on affidavit as set out above, a judge or any presiding officer may not consider any other facts in making a determination. This among others is the bone that the SCA picks with the judgement of Nicholson. The truth or not of the issues relating to political interference is simply of no consequence. Nicholson should not have concerned himself with such matters in the context of the judgment he delivered. JZ stated in the papers before Nicholson that he did not seek to challenge the decisions and that his application did not concern the merits or motives for the decisions. Nicholson himself states in his judgement that political meddling is not a matter that he is required to determine.
There can be no vindication for the manner in which Nicholson conducted himself and the matter before him.
Dr Mangcu accuses Harms, the judge who delivered the SCA judgement of being a positivist (in SA legal history this comes perilously close to “counter-revolutionary”). If only it were a fair accusation. Positivists are those judges who refused to evaluate a law passed by parliament. Who held a view that once a law has been passed, theirs was to interpret and apply such a law. In my reading of the judgement of the SCA, I do not find any evidence of the positivism that Dr Mangcu cautions against. I am open to learn otherwise. Harms, positivist or otherwise, correctly in my view cautions against a judge infusing his political views, opinions or beliefs into the body of evidence upon which he is meant to make a determination. The arms deal may be the most abominable executive decision yet. It was not relevant to the matter Nicholson was required to determine.
The opposing jurisprudence school to the positivist are the naturalists. It does not get more naturalist than the requirement that a person be heard prior to a judgment being passed on her. This rule, known as the audi alteram partem is the most well known of the rules of natural justice. A rule Nicholson completely ignores in his quest to protect us from the excesses of the executive.
To Nicholson’s discredit, he put the fair adjudication of motion proceedings in jeopardy, and for that there can be neither vindication nor redemption.
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