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
10 November 2010

Another personal attack on an independent institution

When President Jacob Zuma appointed Adv. Menzi Simelane as the National Director of Public Prosecutions (NDPP) I was rather scathing about this appointment, arguing that Simelane was not a “fit and proper” person as required by the National Prosecuting Authority Act and that the appointment was therefore unlawful. I based my critique on the findings of the Ginwala Inquiry which found that Simelane was an untruthful witness and that he had drafted a letter (later signed by the Minister of Justice) which probably contained an illegal instruction.

A few months later, taking part in a panel discussion with Adv. Simelane, former Chief Justice Arthur Chaskalson, and ID leader Patricia de Lille  on whether the judiciary is capable of holding high ranking public officials to account, I told the story of how an apartheid Minister had complained about judges who, once appointed, thought they were there on merit and started thinking for themselves and expressed the hope that Adv. Simelane would similarly now start thinking for himself.

As we live in a democracy (albeit a one party dominant democracy), we all have the right to criticise the President’s choice of NDPP (just as we all have the right to criticise the National Assembly’s choice for Public Protector, Auditor General or any of the South African Human Rights Commissioners). We also all have the right to criticise any decision taken by the NDPP  (like the seemingly unlawful dropping of charges against President Jacob Zuma) — just as we have a right to criticise a court judgment or an decision by the Public Protector or the Human Rights Commission.

I will, of course, continue to criticise decisions made by Adv. Simelane when — based on an analysis of the available evidence – I conclude that he is not fulfilling his constitutional and legal duties. Criticising the decision of a court or of anyone else who serve in one of the independent constitutional institutions is not illegal or unconstitutional. In fact, such criticism is part of the mechanism to hold such institutions accountable. The NDPP is not excluded from this principle.

As the Constitutional Court pointed out in the First Certification case, section 179(4) of the Constitution provides that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice, while subsection 179(5) states that the NDPP “must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process”.

This, the Court stated, means that there “is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts”. The National Prosecuting Authority Act guarantees this independence as required by the Constitution. Section 32(1) of that Act states that:

(a) A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.

b) Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.

Anyone who contravenes section 32(1)(b) of the Act is guilty of a criminal offence and could be sentence to a prison term of up to two years if convicted.

Where does that leave the Northern Cape ANC Youth League, who seems rather upset by the arrest and prospective prosecution of ANC Northern Cape chairman John Block? In a statement, issued on behalf of the League by ANCYL Provincial Chairperson, Shadrack Tlhaole, the League “argued” that:

The PEC analysed the charges [against Block] and came to the conclusion that these charges are not (sic) foreign to the youth league and will soon be exposed…. The ANC Youth League Northern Cape is disgusted with the manner in which the national director of public prosecutions advocate Menzi Simelane is handling the case against the chairperson comrade John”Fikile”Block. The conduct of the national director of public prosecutions leaves much to be desired and in fact we are compelled to believe that he is not the only rented dog of a political conspiracy against our leader.

In its statement, the Youth League states rather boldly and with surprising precision and clarity that “there is no prima facie evidence connecting the chairperson with the commission of an offence”. The Youth League is of course entitled to express this opinion, although the opinion is rather laughable as the evidence against Block has not yet been presented in court and it is therefore impossible for any reasonable person to come to a conclusion about whether Block is guilty of any crime.

However, it is extremely worrying that the ANC Youth League launched a personal attack against the NDPP by calling him “a rented dog of a political conspiracy” (whatever that may mean). The statement — coming from a formation who is part of the governing party — could arguably be interpreted as attempting to intimidate the prosecuting authority and thus as interfering with the work of the prosecuting authority in contravention of section 32(1)(b) of the Act.

Sadly, this statement forms part of a broader trend in our political discourse. It seems as if every second politician and wannabe public commentator who do not agree with the decision of an independent constitutional body these days would rather launch a personal attack against the person or persons who made the decision than actually present evidence or arguments about why the decision is legally untenable. As I have argued before, this kind of personal attack on individuals who have been appointed to independent constitutional institutions undermines the integrity of such constitutional institutions (and hence undermines respect for the Constitution itself).

To its credit, the ANC head office reprimanded the Youth League for this outrageous statement.  According to ANC spokesman Jackson Mthembu: “Not only is the ANCYL of the Northern Cape out of line for rubbishing the state security agencies and the courts of law, but should also publicly apologise to Advocate Simelane for calling him ‘a rented dog of a political conspiracy’.” The question to be asked is of course what the ANC will actually do about the matter. Will it stand by idly while one of its sub-structures undermines an independent constitutional institution or will it show that it has a greater regard for the Constitution than some other political organisations by taking action against the Northern Cape Youth League leadership?

If the last few months has taught me anything it is that it is almost never a good idea to launch completely unsubstantiated, vicious and highly personal attacks against members of the judiciary or against members of other independent institutions, especially not if one is merely attempting to discredit the decisions made by these institutions with which one happens to disagree or which are politically damaging to the organisation one happens to belong to. In the world of conspiracy theorists inhabited by so many South African politicians (a world in which the merits of a decision is not really in issue at all) many politicians and other commentators have come to believe that the best way to discredit a decision is to attack and discredit the messenger.

This is not good for democracy and for respect for the Constitution and the law. I wish I could say the Youth League should have known better, but this is of course not the first time it uses such tactics. It has a “proud” record of dodging the substantive issues by shooting the messenger. Just recall the attacks on the Scorpions and the judiciary when the Youth League still thought that Jacob Zuma was the best thing since Johnny Walker Black Label.

Sadly, the Youth League in the Northern Cape is not the only organisation that habitually reverts to such attacks and alleges conspiracies and dark plots when it feels that it is under attack. And our society is the poorer for it. Pity more people are not principled enough to condemn this nasty and counter-productive practice – no matter from where it comes.

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