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
Vusi Pikoli – when will it end?
Vusi Pikoli, the National Director of Public Prosecutions was suspended in September last year. Now seven months later we still have no comprehensive official explanation for why the President suspended him and the Ginwala Commission of Inquiry set up to make a recommendation on whether he should be fired or not, still has had no hearings on the matter.
Mrs Ginwala has now stated that the parties to the commission can decide for themselves whether they want to release their submissions made to her to the public and Mr Pikoli’s lawyer has stated that his submissions will be made public.
I am not holding my breath that the government will be equally transparent and will rush to make public their submissions.
One would have thought that in an issue of such utmost importance the government would have tried to expedite the matter and that the Commission would long since have completed its work. Sadly this has not happened.
It seems to me untenable that this thing is dragging on and on and that there has been no communication from the government to enlighten us on why Mr Pikoli had to be suspended for seven months (and unlike the Police Commissioner who has actually been charged with a crime he has been suspended without receiving any pay).
It is imperative that all the submissions to the Ginwala Commission are released forthwith (and please do not come with excuses again that national security demands otherwise – the excuse of national security is about as convincing as those excuses by students that the computer or the dog ate their assignment).
When Mr Pikoli was suspended Mr Frank Chikane said this was done because there was a breakdown of the personal relationship between Justice Minister Brigitte Mabandla and National Director of Public Prosecutions. Only problem is that the NPA Act does not allow for the suspension or firing of the NPA Director for a breakdown of this nature.
In the absence of any other communication from the government it is difficult not to conclude that this has taken so long because the government had realsied that the President could not legally fire Mr Pikoli for a breakdown of trust and therefore had to fabricate come up with other reasons for his suspension.
Meanwhile the NPA is lurching from one crisis to another – what with the Scorpions being in the firing line and them having to fight legal battles on all fronts in their attempt to bring charges against Mr Jacob Zuma and the arms company who allegedly bribed him.
What is needed is for the government to make public all the submissions on this matter and if the government refuses for Ginwala to do so. Her rather battered credibility in this matter is at stake. Remember she was seen conferring with the Minister of Justice on the same flight several days before Mr Pikoli was suspended by the President and before she was appointed to investigate the matter.
We are waiting to see if the government will honour those celebrated values of accountability, responsiveness and openness set out in section 1 of the Constitution in this matter. So far they have not done so and have acted against the spirit of the Constitution.
It is only when we have all the information that we could make our our own minds on whether the President had acted in a scandalous way and had abused his power, or whether there were real reasons for the suspension of Mr Pikoli. The failure to take us into their confidence affronts the human dignity of all of South Africa’s citizens because it deprives us of the agency to decide for ourselves what to make of this tawdry affair.
But then again, our President has never really shown a deep insight into the needs for the respect of the human dignity of citizens and have often acted in a manner that suggest that we have no right to make up our own minds about anything because we are, after all, considered by our President to be either stupid or racist or often both.
