Quote of the week
Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
Nicholson a hero of judiciary after all?
The Times asked me to write a short piece on the effect of the SCA Zuma judgment on the judiciary. Money quote:
Ironically, Nicholson might inadvertently have done our judiciary and democracy a favour. He took the heat off the judiciary at a time when judges were being branded as counter-revolutionaries and then it was left to the SCA to correct his legal mistakes.
Though not planned, the outcome shows that our judiciary is alive and well and that even powerful men like Zuma cannot expect special favours from our judges, because in the process of checks and balances built into our judicial system, the law will triumph over demagoguery and idle threats.
Now I see Bantu Holomisa has called upon the Judicial Services Commission to investigate Judge Chris Nicholson. Says the press release:
The SCA identified several instances in which Justice Nicholson had relied on hearsay and documents not contained in the affidavits before the court in order to draw conclusions that were untested. These inferences were not required in order to make a ruling and had massive political implications.
We call upon the Judicial Service Commission to investigate the instances identified by the SCA where Justice Nicholson contravened judicial procedure. We further request that the JSC makes a finding on whether Justice Nicholson is fit to hold office under the circumstances.
Ag nee wat, this is just political opportunism on the part of the UDM – probably scared they will lose the few votes they still got to Cope. I would have expected more from Mr Holomisa, the ex-military dictator.
First, the complaint is not going to go anywhere. Judge Nicholson was wrong. He made political statements and applied the law wrongly. He would not be the first judge in the hirstory of South Africa to have done that. That is why we have an appeals process – so that mistakes can be corrected by higher courts. Unless Holomisa can show that Nicholson was bribed or improperly influenced to make his judgment, the JSC is going to laugh at this ridiculous complaint, as they should.
Second, Mr Holomoisa is not doing our judiciary any favours by politicising the issue even further. Yes, Nicholson made mistakes. yes, he was lambasted by Harms (not an angel himself!) for wading into political terrain best kept to politicians or for brandy and coke talk around the braaivleis fire (with or without Steve Hofmeyer present). But to lay a complaint may suggest to the public that some of our judges cannot be trusted to make findings based on the law and how they see it and might actually have the effect of creating distrust in our judiciary.
Let it rest Mr Holomisa. Our judiciary will always make mistakes – sometimes very serious mistakes of fact or law) and these may or may not be corrected on appeal. This does not mean that judges are dishonest or have breached their oath of office. Unless a judge acted unethically (by taking money from a political party or a company and then doing favours for them from the bench, say) we should be slow to run to the JSC with complaints.
