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
18 April 2008

Arms to Zimbabwe?: UPDATE

It turns out the Lawyers in Durban who are in the process of launching an urgent application in the Durban High Court to stop the trans-shipment of six containers of arms from the Durban Harbour to Zimbabwe might very well have a strong case.

It turns out the South African parliament passed the National Conventional Arms Control Act 41 of 2002, a wonderful piece of legislation aimed at controlling the manufacture, marketing, exportation and conveyance of conventional arms in South Africa.

According to section 13 of the Act any person who wants to manufacture, market, import or convey conventional arms in South Africa needs a permit that must be issued by the National Conventional Arms Control Committee (NCACC). Those arms in the Durban harbour could therefore only be transported to Zimbabwe if the conveyancing permit was validly issued by the NCACC.

I assume the court challenge in Durban will centre around the validity of the decision by this Committee to issue such a permit and will ask the court to review and set aside the decision of the Committee to issue the permit. They will probably argue that the Committee failed to adhere to the provisions of the Act when it issued the permit and therefore acted ultra vires.

Section 15 of the Act states that when it issues such a permit the Committee must, amongst other things:

  • avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms;

  • avoid transfers of conventional arms that are likely to contribute to the escalation of regional military conflicts, endanger peace by introducing destabilising military capabilities into a region or otherwise contribute to regional instability;

  • avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms;

  • avoid the export of conventional arms that may be used for purposes other than the legitimate defence and security needs of the government of the country of import.

The Committee will have great difficulty showing that the Zimbawean government does not systematically violate or suppress human rights and that the arms would not be used for the internal oppression of those who oppose the Zanu-PF regime. Any person who watches television from time to time (but probably not the President of South Africa) will be able to tell you that Mr Mugabe’s regime is an oppressive one and that arms destined for the Zimbabwean Defence Force are more likely than not to be used to assist in the internal oppression of the people of Zimbawe.

There is therefore a strong possibility that a court could find that the Committee who issued the permit did so in contravention of its obligations as set out in the legislation. One might well wonder why this Committee, chaired by Defence Secretary, January Masilele, was so eager to issue the conveyancing permit. That is, until one studies the Act and notices that this Committee is appointed by President Thabo (“there is no crisis in Zimbabwe”) Mbeki and is made up of Ministers, Deputy Ministers and other persons appointed by the President.

People even less cynical than me would begin to wonder whether such a Committee would Act in such a sensitive matter without at least informally sounding out the President. But maybe it is time for the two centers of power to do some good and for the ANC to send out a strong signal that the shipment of arms to Robert Mugabe’s government is untenable. Who knows, the Committee might suddenly have a re-think after careful consideration of their political futures.

A statement from the ANC would also give a judge some political cover to make a ruling against the government on such a politically sensitive issue. Now, if those people in Luthuli House could just stop obsessing about the Scorpions for a day or two, they might do us all some good in this matter.

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