Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Human Rights Commission appointments not up to scratch
Ever since the “Polokwane Revolution” at the end of 2007 – and even more so after the April election – ANC members of Parliament seem to be confused. When Thabo Mbeki was President of the country and of the ANC, that organisation’s MP’s more often than not followed the “party line” no matter what. This meant that Ministers were seldom held to account and the Presidency – often through the “good work” of Essops Fables – instructed MP’s on who to appoint to key positions.
The disastrous SABC Board, nominated by the National Assembly at the end of 2007 and appointed shortly afterwards by Mbeki, is a case in point. After MP’s had finalised a list of names for appointment to the SABC Board, ANC MP’s were instructed to change that list, which it promptly did. And we all know what happened then.
Under President Jacob Zuma things are far more complicated for MP’s. There is seldom a Friday “Letter from the President” helping MP’s to decide what they are required to think and how they are supposed to act to advance their careers. And because various factions in the Zuma cabinet seem to be at loggerheads with each other and the President himself does not always get involved in the skirmishes between his Ministers, poor MP’s are afraid and confused as they do not know what the “party line” is anymore.
Sometimes this is a good thing. It leaves MP’s with some room to make sound decisions in the interest of the country. Many Parliament watchers were pleasantly surprised, for example, when a special committee of Parliament recommended Thulisile Madonsela for appointment as the new Public Protector. For once all parties agreed on the nomination to one of the Chapter 9 institutions. An independent woman with sound legal knowledge, her appointment has been lauded even by civil society groups.
But then, just when one was ready to sing the praises of the emerging independent spirit of ANC MP’s, they go and nominate some rather dodgy characters for appointment to the South African Human Rights Commission (SAHRC).
The list includes Ms Lindiwe Mokate (full-time), who worked as the CEO of the SAHRC before leaving that organisation under a cloud in 2005. The SAHRC was beset with difficulties during her tenure and there was an exodus of staff and reports of victimisation by senior management. In July of 2005, unhappy staffers wrote an open letter to National Assembly Speaker Baleka Mbete saying that at least 15 staff members had resigned in the first six months of the year and asking for her urgent intervention to save the commission from a “crisis”.
Another name is that of Adv B Malatji (full-time), who was the Chief Director: Legal Services in the Department of Home Affairs at a time when that Department gained the reputation as the most dysfunctional government Department. To be fair, it is unclear whether Adv Malatji did anything to stop the rot or did himself contribute to the malaise within the Department. During his tenure the Department did pilot several pieces of progressive legislation through Parliament, so personally I would be happy to give Adv Malatji the benefit of the doubt.
Not so with Adv Lawrence Mushwana (full-time), who used to be an ANC MP before he became a useless and sycophantic Public Protector. In July Judge JNM Poswa delivered a damning judgment in the North Gauteng High Court in which he set aside a “report” (well, more like an excuse for a report, also called a “whitewash”) by the Public Protector into the so called Oilgate scandal. Mushwana became notorious for failing to properly investigate complaints against powerful ANC politicians, so one can only despair that he will now be appointed to the Human Rights Commission.
But Mushwana is, sadly, not the worst of the bunch. Parliament also nominated Adv Loyiso Mpumlwana (full-time), only to discover that he did not disclose that he had been fired by the Truth and Reconciliation Commission in 1997. This fact only came to light shortly before the National Assembly voted to nominate Mpumlwana as a full-time commissioner.
The various political parties who belatedly discovered the fact that Mpumlwana was less than honest about his past are expected to bring their concerns to the attention of the National Assembly’s Justice Committee when Parliament resumes its work next week. Mpumlwana was fired for not doing his job and for holding down a job with the TRC while also having a full-time job with the Eastern Cape government.
The problem is that Parliament has already voted for his appointment and the President has no choice but to appoint him, unless Parliament now reverses its decision. One sincerely hopes that MP’s will bite the bullet and will reverse its decision to ensure that this dishonest man does not become one of the custodians of our human rights at the SAHRC. Really, it’s a bit like appointing Leonard Chuene as the head of an Honesty and Integrity Board or a Truth Commission. The MP’s should surely have the right to reverse its decision, if not on the basis that Mpumlwana was fired by the TRC, then at least on the basis that he misled Parliament by failing to disclose this fact to it.
Parliament also nominated two “minority candidates” (as Julius Malema would call them in a more coherent moment when he is not recovering from a night of debauchery with his friend Jonny Walker Black) as part time commissioners. Janet Love, a respected human rights attorney with a deep and abiding commitment to human rights made the cut, so there will be at least one sane voice on the SAHRC.
But Dr Danny Titus, the head of the Bruin Belange Inisiatief and the erstwhile head of the Afrikaanse Taal en Kultuur Vereniging (ATKV), a right wing “cultural organisation” fighting for the interest of the Afrikaans language and culture, also got the nod. Although Titus is a lawyer and seems to be quite well known amongst Afrikaners (who likes Titus because he gives their fight to retain special rights and privileges for Afrikaans some legitimacy), there were far better candidates on the shortlist who did not make the cut.
Why did the ANC controlled committee nominate some of these characters when so much better candidates applied for appointment? Why was the process politicised? Why were candidates with a strong human rights background and a track record of fighting against racism and discrimination not appointed? It is not as if the SAHRC can declare invalid actions of the executive or the legislature. It is suppose to promote and protect the human rights of ordinary people and the more effective and passionate the Commissioners are, the better ordinary people will be served.
Maybe some of these Commissioners will surprise us all and will do sterling work. But do not hold your breath.
