Trying to read SA after Nicholson

Aubrey Matshiqi – published in Business Day – 26 September 2008

IN 1970 Lord Patrick Devlin wrote in The Judge: “It is a great
temptation to cast the judiciary as an elite which will bypass the
traffic-laden ways of the democratic process.” He continued so: “But it
would only apparently be a bypass. In truth it would be a road that
would never rejoin the highway but would lead inevitably, however long
and winding the path, to the authoritarian state.”

I do not know why I am sharing the words of this learned judge with you. I am not
even sure they are connected in any way to the subject of today’s
column. But I suspect that Judge Chris Nicholson will agree with
Devlin’s pregnant prose — assuming of course that Nicholson is one of
the three readers of this column.

It is now common cause that Nicholson’s judgment of two weeks ago is busy changing the course of
SA’s political history. I wonder whether, when he said “in terms of the law, more especially emanating from the constitution, there is responsibility attributable to the president and his cabinet for what
Mr (Penuell) Maduna did. This would, of necessity, also apply to what Ms (Brigitte) Mabandla did. I am therefore not convinced that the applicant was incorrect in averring political meddling in his
prosecution”, Nicholson knew that his judgment would set in train events that would lead to Thabo Mbeki being asked by the national executive committee of the African National Congress (ANC) to step down
as president.

Since judges tend to be oblivious to such inconsequential developments as the resignation of a head of state
before the end of his term, perhaps Nicholson is puzzled by all the fuss his judgment has caused.

The rest of us will probably remember him as the greybeard whose judgment brought down a government.

WHAT has been interesting though is how people have given the judgment meanings that were probably not intended by Nicholson. Even the Eugene Terreblanche of ANC politics felt redeemed by the words of the judge and promptly declared that they were a vindication of political lunacy.

Although some have approvingly referred to Mbeki as “the master of the disguised klap”, his reflexes were too slow for the rush of knives hurtling towards him. By comparison, Julius Caesar died a humane death.

But there are some who have been saying that each flying dagger bore the autographs of Mbeki’s victims. Or as former leader of the Democratic Alliance, Tony Leon, put it: “Those who live by the sword, die by the
sword.” But others say the blades were unsheathed in the interests of the ANC and the country.

Constitutionalists have, on the other hand, been arguing that it is wrong for a political party to impose its
will on the state when the constitution is capable of doing that all on its own. Because I am of a naive disposition, I aver that the authors of our constitution would not have made provision for the removal of
the head of state if they thought such provisions would be antithetical to democratic norms and values.

Also I seem to recall that Nelson Mandela and Mbeki were elected presidents of the republic following internal decisions that were taken by the ruling party. In the same way, the ruling party has recalled its former leader — but this time people are miffed. Some rightly so because the words “principle” and “in the interests of the country” are being stripped of their moral content. Others expediently so because they want to have their democratic cake and eat it. Some of them are even talking of a “constitutional crisis”.

I am not convinced we are there yet but the ANC must make sure it succeeds in stabilising the state and party structures. If those who warn of a crisis and a banana republic are correct, then the events of the past week mean we are on track with our journey to destination calamity.