1 This note flows directly from an unpublished paper written jointly by the authors: J Klaaren and T Roux “The Nicholson judgment: An exercise in law and politics” (unpublished South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) working paper, 25 September 2008). This working paper itself followed the authors' presentation at a SAIFAC seminar on the Nicholson judgment held on Constitutional Hill on 19 September 2008. Information regarding SAIFAC seminars and publications is available at: <http://www.saifac.org.za>. Klaaren was a SAIFAC sabbatical fellow 2008–09 and Roux is the former director of SAIFAC. Needless to say, the authors take all responsibility for any errors in the current version of the note.

2 Natal Provincial Division, case no 8652/08; [2008] ZAKZHC 71; [2009] 1 All SA 54 (N) (12 September 2008).

3 Nicholson judgment, para 139.

4 For an overview of the politics around the recall and resignation of President Mbeki, see R Southall “Thabo Mbeki's fall: The ANC and South Africa's democracy” (14 October 2008), available at: <http://www.opendemocracy.net/article/thabo-mbekis-fall-the-anc-and-south-africas-democracy> (last accessed 6 November 2009).

5 National Director of Public Prosecutions v Zuma (8652/08) [2008] ZAKZHC 77 (22 October 2008).

6 Founding affidavit of TM Mbeki in the matter of Mbeki v Zuma and Another (CCT 79/08) (22 September 2008). In para 34.6 of his affidavit, Mbeki states: “[O]n a reading of the judgment of Nicholson J, there is a real possibility that persons with malicious intent could act on it to the detriment of the office of the president of the Republic of South Africa, members of the National Executive, and to me personally”.

7 Mbeki v Zuma and Another CCT 79/08 (order of court, 10 November 2008).

8 National Director of Public Prosecutions v Zuma, case no 573/08; [2009] ZASCA 1 (12 January 2009).

9 As of 16 March 2009, the date for the hearing of such an application was set for 12 May 2009.

10 For an example of such a charitable interpretative approach, see F Michelman “On the uses of interpretive ‘charity’: Some notes on application, avoidance, equality, and objective unconstitutionality from the 2007 term of the Constitutional Court of South Africa” (Harvard Public Law working paper no 08-26) (2007) Constitutional Court Review (forthcoming). As one might expect, the Mbeki application to the Constitutional Court (above at note 7) did not adopt an interpretive approach of “charity”.

11 For a broadly similar exercise, see L Lazarus “The president, the prosecutor and the secular priest: Corruption, politics and the courts; Jacob Zuma v National Director of Public Prosecution”, available at: <http://ssrn.com/abstract=1307207> (last accessed 6 November 2009). See also A Dodek “State v Zuma and the future of constitutional democracy in South Africa” (unpublished draft, 17 February 2009).

12 In granting leave to appeal, Nicholson J himself characterized his earlier judgment in terms of three questions: “The primary question of whether the matter was of a civil or criminal nature was res nova in the sense that it had never been considered before and occasioned me much anxious deliberation. In addition, the legal question as to whether the provisions of section 179(5)(d) of the Constitution and the corresponding provisions of the National Prosecuting Authority Act were applicable to the application in the main application was a very complex issue which had never been considered before by the Courts. … Apart from the above matters I was also minded to decide the factual question as to whether the applicant had a legitimate expectation that he could make representations to the National Director”: National Director of Public Prosecutions v Zuma (8652/08) [2008] ZAKZHC 77 (22 October 2008) at 77.

13 While this is not a particular theme of this section, it is striking the degree to which administrative law concepts and reasoning pervade this judgment; indeed this raises the fundamental issue of the extent to which an administrative law paradigm is appropriate in holding the exercise and the organization of criminal prosecution constitutionally accountable (which would appear at least somewhat less appropriate than Judge Nicholson apparently thinks). The judgment does not overtly and clearly cast itself as one undertaken in terms of the PAJA. Nonetheless, on a close reading, it is apparent that Nicholson J did intend to review in terms of the PAJA. See paras 66, 126 and 243 of the Nicholson judgement.

14 Id, para 57.

15 It appears that the constitutionality of the PAJA was not brought into issue in the case.

16 PAJA, sec 1 onwards.

17 Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism and Others [2004] ZACC 15, 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC); Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amicus Curiae) [2005] ZACC 14, 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC).

18 For a recent discussion of this question, see Klaaren, J and Penfold, G “Just administrative action” in Woolman, S et al. (eds) Constitutional Law of South Africa (2nd ed, Original Service June 2008, Juta) chap 63.6 to 63.14Google Scholar.

19 Nicholson judgment, para 66.

20 This forms part of a general though declining tendency among the legal profession to avoid engagement with the PAJA and instead to continue to engage with the question of procedural fairness through the common law jurisprudence. See Currie, I “What difference does the Promotion of Administrative Justice Act make to administrative law?” in Corder, H (ed) Comparing Administrative Justice Across the Commonwealth, first published as Acta Juridica (2006, Juta) 325Google Scholar.

21 Nicholson judgment, paras 63 and 64.

22 In a slightly different sense (as Cora Hoexter pointed out in the SAIFAC seminar held on 19 September 2008) to the extent that this reasoning is akin to that in Marais v Democratic Alliance 2002 2 All SA 424 (C), 2002 (2) BCLR 171 (C), it can be critiqued as fallacious. See also C Hoexter Administrative Law in South Africa (2007, Juta) at 192.

23 Perhaps the apparent need to blaze this particular procedural path (and the difficulty to do so) may have inclined Nicholson J to the PAJA (and administrative) route. Another alternative, akin in some respects to the route recently taken with the Labour Relations Act 66 of 1995, would have been to argue that the procedural fairness regime of sec 179(5)(d) can stand at least to some extent on its own. See Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22, 2008 (2) SA 24 (CC), 2008 (2) BCLR 158 (CC), (2007) 28 ILJ 2405 (CC), holding that compulsory labour arbitrations are administrative action but reviewable in terms of labour legislation rather than the PAJA.

24 That section provides in pertinent part: “The National Director of Public Prosecutions may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following: (i) The accused person. (ii) The complainant. (iii) Any other person or party whom the National Director considers to be relevant.”

25 An additional argument was whether the decision was itself a review. See Lazarus “The president”, above at note 11 at 6–7.

26 See for instance Nicholson judgment, para 78: “From time immemorial the executive has cherished the notion of usurping the independent function of the prosecuting authority and directing criminal prosecutions at its political opponents.”

27 Id, paras 127 and 230–31.

28 The basic difficulty comes from the textual inclusion of “legitimate expectations” in sec 3 of the PAJA but not in sec 33 of the Constitution nor in the definitions section of the PAJA. See Klaaren and Penfold “Just administrative action”, above at note 18. Note also that Nicholson's basis of arguing that Zuma had a legitimate expectation could not have been protected by the principle of legality on its own without the underpinning of the PAJA. Such a pure constitutional assertion of procedural fairness outside the context of the PAJA would fall foul (or at least run into serious trouble) of the recent Constitutional Court rejection of extending the content of the principle of legality and rationality to include procedural fairness: Masetlha v President of the Republic of South Africa and Another [2007] ZACC 20, 2008 (1) BCLR 1 (CC).

29 Here, it must be said that Nicholson's comment (at para 150 of the judgment) that “[g]iven that a decision was made to prosecute Mr Shaik and his corporate entities, the decision not to prosecute the applicant, when there was a prima facie case and bribery is a bilateral crime, was bizarre to say the least …” has the ring of real truth, even if it be truth in hindsight.

30 Id, para 139. In para 217, the argument is stated: “If there was political interference in the earlier decision not to prosecute the applicant and in all probability the later one to prosecute him what does one make of the offer of the NDPP that the applicant can make representations at any time about the investigation or prosecution? It seems to me that if he was afforded the chance to make representations at any time for any reason, it would be the duty of NDPP as he expressed it to consider these.”

31 It is remarkable that Nicholson J used the term “political” five times in the first two paragraphs of his judgment.

32 Roux, T “Principle and pragmatism on the Constitutional Court of South Africa” (2009) 7 International Journal of Constitutional Law 106CrossRefGoogle Scholar.

33 Rosenberg, G “Judicial independence and the reality of political power” (1992) 54 (3)The Review of Politics 369 at 371CrossRefGoogle Scholar (operationalizing independence as judicial independence). Rosenberg's argument might apply analogically in the context of the independence of the NDPP. Indeed, it is noteworthy that President Molanthe made the surprise suggestion that candidates for appointment as NDPP be nominated by an independent body such as the Judicial Services Commission.

34 Nicholson judgment, paras 20–40.

35 Id, para 25.

36 Id, para 37.

37 Id, para 33.

38 Southall “Thabo Mbeki's fall”, above at note 4 at 5.

39 Nicholson judgment, para 158.

40 Id, para 173.

41 Id, para 196.

42 Id, para 210.

43 Id, para 196.

44 Writing after the release of the Ginwala report (which investigated the firing of the NDPP, Vusi Pikoli) and the handing down of the SCA decision, Franny Rabkin noted that “there are now three different versions of the appropriate relationship between the executive and the NPA”: Rabkin, F “Zuma saga puts constitution to the test” (14 January 2009) Business Day 3 at 3Google Scholar.

45 This paragraph predates the report of the Ginwala Commission and deals with material and questions within that commission's terms of reference.

46 Lenta, P “Rainbow rhetoric” in du Plessis, M and Pete, S (eds) Constitutional Democracy in South Africa 1994-2004: Essays in Honour of the Howard College School of Law (2004, Lexis Nexis Butterworths) 15 at 30Google Scholar.

47 Davis, D and le Roux, MPrecedent & Possibility: The (Ab)use of law in South Africa (2009, Double Storey)Google Scholar. The discussion of the Nicholson judgment is at 190–93.

48 The concept of “lawfare” is derived from: J and Comaroff, J “Law and disorder in the postcolony: An introduction” in J and Comaroff, J (eds) Law and Disorder in the Postcolony (2006, University of Chicago) 1CrossRefGoogle Scholar.

49 Davis and le Roux Precedent & Possibility, above at note 47 at 193–94.

50 See id at 189 (equating the turn to lawfare with the juridification of politics).

51 See Merry, S “Book review” (2008) 42 Law & Society Review 683 at 683CrossRefGoogle Scholar.

52 “Consequently, beyond constituting a public, the ‘scene of the crime’ in South Africa, broadly conceived is also the source of a passionate politics on the part of government, a politics aimed at making manifest both the shape of the nation and a form of institutional power capable of underwriting its ordered existence”: J and J Comaroff “Criminal obsessions, after Foucault: Postcoloniality, policing and the metaphysics of disorder” in Comaroff Law and Disorder in the Postcolony, above at note 48 at 273 and 276. The Comaroffs continue: “What we have here, in other words, is an inversion of the history laid out by Foucault in Discipline and Punish, according to which, famously, the theatricality of premodern power gives way to every more implicit, internalized, capillary kinds of discipline. Indeed, it is precisely this telos – which presumes the expanding capacity of the state to regulate everyday existence and routinely to enforce punishment – that is in question in South Africa. To wit, the drama that is so integral to policing the postcolony is evidence of a desire to condense dispersed power in order to make it visible, tangible, accountable, effective.”

53 See L Lazarus “The president”, above at note 11 at 32: “[A]lthough Nicholson J used the principle of judicial independence to rationalise accusing politicians of breaching the separation of powers when interfering with prosecutorial discretion, he was in effect breaching the very same principles by doing so”.

54 Nicholson judgment, para 237.