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
1 July 2010

Bad day for journalists and politicians

I was one of the many people who welcomed the “election” of Ebrahim Rasool as Premier of the Western Cape back in 2004. After suffering under the ineffectual leadership of that Charles Bronson lookalike Gerald Morkel; the unspeakable windbag Peter Marais; and the arch opportunist and apartheid era Military Intelligence operative Marthinus van Schalkwyk (now ironically a Minister in the ANC cabinet !), the Western Cape finally seemed to have an honest and caring Premier who campaigned to make the Province “a home for all”.

Boy, was I duped or what?

Yesterday it was reported that Ashley Smith, a reporter for the Cape Argus until April 2006, “came clean” in an affidavit submitted to the National Prosecuting Authority, alleging that he had been bribed by Rasool. Smith claimed under oath that he and then political editor of the Cape Argus Joseph Aranes used their positions as full-time staff members on the Cape Argus to assist Rasool’s campaign against political rivals, and that they received money from a public relations company that obtained provincial government contracts handed out by Rasool’s office without using the tender route.

Rasool, who is supposed to take up the position as South Africa’s Ambassador in Washington, issued a tepid denial of these allegations, saying that the allegations are old hat and had been dealt with before. But Smiths allegations are backed up by Rasools enemies in the ANC who have made similar allegations against Rasool in the past.

If the allegations are true, Smith, Aranes and Rasool could all face conviction for corruption in terms of the excellent Prevention and Combatting of Corrupt Activities Act 12 of 2004. If convicted, they could face heavy sentences, as the High Court is empowered by the Act to impose a sentence of up to life imprisonment for contraventions of the relevant sections of the Act.

Section 3 of the Act – which creates the general crime of corruption – is rather broad and has two components.

First, it targets any person who gives or accepts “directly or indirectly” a “gratification”, which is defined as including any money, gift, contract, benefit, position, employment or service. If it can be proven that Rasool had arranged for the PR company to receive contracts from the Premiers office (as alleged by Smith), this would satisfy the first part of the test for corruption as not only direct payments or benefits are targeted. Where a front company is used to channel the payment of money or the rewarding of contracts (as is alleged in this case), that will still fall squarely within the definition of corruption set out in section 3 of the Act.

Second, the “gratification” had to be given or received with the intention to achieve any number of specific goals. Where a gratification is given or received with the understanding that the person who received it would act in an illegal, dishonest, unauthorised, incomplete, or biased way, or that would amount to an abuse of a position of authority or that would amount to any other unauthorised or improper inducement to do or not to do anything, the parties will be guilty of corruption.

If the allegations by Smith are proven to be true, this second requirement would also clearly be met as the journalists would have acted in a dishonest, unauthorized, biased and improper manner by writing bad things about Rasools enemies within the ANC and good things about Rasool while they were supposed to report fairly and honestly about politics in the Western Cape.

Section 24 of the Act further makes it easier for the state to prove its case. As long as it can prove that a “gratification” was given or received, it could be assumed that this was given or received with the intention to corrupt – unless the accused can produce evidence that raises reasonable doubt about this link.

A prosecutor would therefore have to show that the PR company did indeed receive contracts from Rasool’s office and that the journalists did indeed write stories favorable to Rasool and detrimental to his enemies in the ANC. Once this has been done, Rasool and the journalists would have to provide evidence that cast reasonable doubt on the link between these two events.

Two issues arise. First, given the fact that these explosive allegations have now been made under oath, will the police and the prosecuting authority investigate the matter properly and will they bring charges against Rasool and the journalists – despite the fact that Rasool is a well-connected member of the ANC and Ambassador designate to Washington? Or will Menzi Simelane strike again and make sure that these rather troubling allegations go away?

Second, can Rasool plausibly take up his position as Ambassador to Washington with these very serious charges of corruption hanging over his head? Rasool has, of course, not been convicted of any crime. Perhaps these allegations are all part of a dark plot by his enemies. But it seems to me untenable that he could properly represent South Africa in the USA while this dark cloud hangs over his head.

Surely the best way to deal with these allegations would be to investigate them properly and – if they seem plausible – to prosecute Rasool and the journalists who will then either be convicted or have their names cleared by the court. If Rasool is innocent, he might also want to explore the possibility of suing the Cape Argus and Smith for defamation in order to clear his name.

In the absence of such steps, Rasool would clearly not be fit to become the South African Ambassador in Washington. If President Zuma is serious about corruption he will have to withdraw the appointment until the matter has been cleared up. Any bets on whether this will happen? I guess it will depend on internal ANC politics, rather than on whether the President is committed to stamping out corruption or not.

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