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.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
15 December 2008

ANC, know your Constitution (II)

I see dear Comrade Gwede Matashe, Secretary General of the ANC, has been at it again. This weekend he attacked the judges of the Pretoria High Court who rejected the ANC assertion to have an exclusive claim to the name Congress of the People. Dear Gwede, who last wrongly claimed to have been misquoted when he called the Constitutional Court judges counter-revolutionaries (some people would call that lying), is not happy with these judges who had the bloody cheek not to ignore the law to assist the ANC in its political fight with COPE. According to The Star our dear Comrade said:

The two black judges who ruled that COPE could keep the name Congress of the People are “apartheid apologists”…. He said the ANC was paying the price for being “too apologetic… about who we are”…. on Saturday Mantashe said he could forgive Du Plessis – a white judge – for not knowing the “historical facts”, but described the two other judges – who are black – as “apartheid apologists”. He did not refer to their race though.

Our Dear Comrade is of course a bit misgiuded. He thinks (or claims to think) that cases are decided solely on facts as divined by the ANC (who were after all appointed by Jesus Christ to run South Africa), and not on the basis of  applying legal principles. But the ANC lost its case because it could not show that the ANC owned the phrase Congress of the People as a trade mark because it had never registered this trade mark and it was not sufficiently similar to the ANC trade mark to constitute passing off.

Any child with an IQ of more than 70 would have been able to tell our Comrade Leader that the ANC would lose the case. It smacks of an extreme arrogance on the part of the ANC that it thinks judges should ignore the law to assist it in its fight with its brothers in COPE.

That said, Comrade Matashe is obviously not only ignorant of trade mark law but also has never read (or maybe he is not very bright and cannot remember to have read) section 165 of the Constitution which states that “No person or organ of state may interfere with the functioning of the courts”.

Given our history, calling judges apartheid apologists are incendiary and constitutes a direct attack on the independence and legitimacy of the Courts. It would have been fine to attack the judgment by referring to the relevant legal principles and then to argue that judges got it wrong. But to launch a personal attack on judges and to racialise that attack to boot, is extremely dangerous.

Its the kind of language I would have expected from our dear friend Julius Malema – who after all, only scraped through matric and could not even get a pass mark for wood work, so can be excused for saying extremely stupid things. Coming from Mantashe, it is scary. It reflects extremely badly on the ANC who one might now think does not respect the judiciary except when it hands down decisions favourable to it or its Dear Leader – who is having some serious trouble with the law and might well be convicted of corruption if he ever gets his day in court.

Watching Comrade Mantashe on TV I got the scary impression that he really was very cross with the judges and that he really thought the ANC owned South Africa’s history – including the history of the Congress of the Poeple. This means he must also believe the rhetoric that the ANC has a historic mission to transform South African society and that the masses of our people have a historic duty to support them. This is scary, messianic, stuff that I would expect from a gathering of reborn Christians praying for potatoes, but really not from one of the most powerful politicians in South Africa.

What is going to happen when the masses of our people reject the ANC and decides to say: “stuff your historic mission to steal our money, we are going to vote for another party?” Will Dear Comrade Mantashe then attack the people for being unpatriotic? Or maybe he will say that the people are  threatening “national security”. Or maybe the people will become snakes and dogs to be taught a lesson?

Really Comrade, in a constitutional democracy one is supposed to respect the judiciary and not to launch personal attacks on judges. True democrats would never have done such a thing so I must assume you are not a democrat but a Stalinist revolutionary. Us counter-revolutionaries (including most judges and ordinary people) better watch out because who knows when we will be declared enemies of the state and “permanently removed from society”?

Shame on you Comrade, your slip is showing.
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