Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
4 January 2011

Clutching at straws?

It might well be that Shrien Dewani is completely innocent and that he had absolutely nothing to do with the killing of his wife. However, for an innocent man he is behaving rather strangely. Instead of rushing back to South Africa to clear his name, he seems ever more desperate to avoid facing his day in court in South Africa.  It reminds one rather of a famous South African politician who made sure he never got his day in court to avoid having to explain why he took millions of Rand from a crook and then did favours for that crook.

Now the Sunday Telegraph reports that Dewani fears that he will not receive a fair trial in South Africa because he will be tried by Judge President John Hlophe. For anyone with even a passing knowledge of the South African legal system, this argument must seem laughable and even a bit desperate.

As far as I know, a trial judge has not yet been allocated for the Dewani case. It is therefore far from certain that Judge President John Hlophe will hear the case. Advancing arguments at this early stage about the impossibility of receiving a fair trial based on nothing more than the possibility that the accused will be tried by a certain judge seems, well, a bit desperate and unhinged.

But even if Hlophe decides to hear the Dewani case, this does not mean that Dewani will not receive a fair trial. Now, as we all know Judge President Hlophe is a judge who has been mired in controversy, and any accused appearing before him has a right to ask the judge to recuse himself on the basis that he would not receive a fair trial. The problem for Dewani would be that such an application is almost certain to be rejected — and rightly so.

Last month the Constitutional Court in the case of Benert v Absa Bank once again dealt with the issue of when a judge should recuse him or herself. In a judgment written by Chief Justice Sandile Ngcobo the Constitutional Court once again succinctly set out the legal position in South Africa on this issue:

It is, by now, axiomatic that a judicial officer who sits on a case in which he or she should not be sitting, because seen objectively, the judicial officer is either actually biased or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution.This case concerns the apprehension of bias. The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. Or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these situations, the judicial officer must ordinarily recuse himself or herself. The apprehension of bias principle reflects the fundamental principle of our Constitution that courts must be independent and impartial.9 And fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial. The test for recusal which this Court has adopted is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts, that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court.

This means that the mere fact that a judge has previously acted in a controversial manner — as Hlophe has done — is not in itself ever going to be relevant. The question is whether a reasonable person with all the facts at hand, a person not animated by the racial prejudices of your average British national (or journalist), will have a real apprehension that the judge will be biased because of what the judge had done or said either before or during the trial.

Now, personally I might not want to be tried before Hlophe JP because I have been rather critical of him and I might well have a reasonable apprehension — rightly or wrongly — that Hlophe would find it difficult to be completely impartial and unprejudiced in hearing my case. But Dewani does not have any similar history with Hlophe. Neither is there any direct link between the controversies in which Hlophe had been  involved in the past and the Dewani case.

No reasonable person with all the facts at hand would therefore be able to convince any court in South Africa – and indeed a court in any other reasonably functioning democracy — that there are any grounds for a reasonable apprehension of bias by Hlophe in the Dewani case. Hlophe has not made any utterances about the case and neither can any of his previous actions or utterances be linked in any way with the facts or the circumstances of the Dewani case.

Dewani is, of course, free to rush back to South Africa to stand trial and if he were to be tried by Hlophe he would have a right at any time to ask for the recusal of the judge if anything happens during his trial that gives rise to a reasonable apprehension of bias on the part of Judge President Hlophe. Dewani would similarly be entitled to ask for the recusal of any other judge allocated by Hlophe to hear the case — but only if there are real reasons for Dewani to fear that he would not receive a fair trial.

In effect, these arguments presented by Dewani and his spin doctors are less about legal issues than about an attempt to win the media war. I suspect Dewani and his spin doctor Max Clifford has decided to try and create sympathy for Dewani by playing into fears and prejudices of the UK public about whether an Englishman could ever get a fair trial in “deepest and darkest Africa”. IF I was a member of the UK public I would be rather sceptical about this transparent move to tap into the racial prejudices of the  public or the erstwhile colonial master and would ask: if Dewani is innocent — as he claims — why is he not rushing to South Africa to clear his name?

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