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
4 December 2007

Badih Chaaban and the law of the jungle

Can anyone tell me why there is still a dispute about who should pay whom in the “big battle for Greenmarket Square” in Cape Town and why Badih Chaaban is still trying to collect rent from stall holders when his lease came to and end at the end of November? Sure, we live in a little fishing village, but surely the law should apply here to everyone as it is supposed to apply to everyone anywhere else in the country.

It seems like a pretty straight forward case. The City of Cape Town gave Chaaban six months notice of the cancellation of his lease and instructed all stall holders to register with the City Council and to pay rent for their stalls to the Cape Town city council. Chaaban refuses to accept that his lease was terminated (but has not provided any legal arguments for this) and is now still trying to collect rent from stall owners. This is sheer thuggery masquerading as self-righteousness.

Chaaban claimed to have cashed a cheque for R75 000 on Friday in anticipation of getting most of the traders to show their loyalty to him and reject the council’s efforts to take back control of the square. Traders were told to hand over a copy of their new council permits in exchange for R400 minus their daily rental to Chaaban. He threatened to evict traders not loyal to him. They would then continue paying Chaaban the daily fee but most of them did not due to a heavy police presence.

But on Monday the shenanigans continued. According to the Times his sidekick Juan Duval Uys went to the square on Monday to collect rent and when he was prevented from doing so by the police Chaaban was not happy:

He said: “I’m sitting put until they prove I’m not there legally. I don’t get intimidated by cops. They can bring as many machine guns and bullet-proof vests as they like. […] I was brought up on the principle of an eye for an eye and a tooth for a tooth.”

In effect Chaaban’s strategy has been to try and force the traders (through charm and threats) to remain loyal to him and to continue paying him – thus ignoring the legal rights of the owner of Greenmarket Square, which happens to be the City Council. It is an extra-legal strategy based on the idea that one can get what one wants if one can force people to obey one – regardless of the legal rights one may have. A bit like Taxi operators killing Taxi drivers of an opposing operator for treading on “their” turf”.

In a state based on the Rule of Law, Chaaban should only really have two options: he should either shut up and go home or he should go to court to challenge the cancellation of the lease there. However, Chaaban made it clear that he would not choose either of these options but would try and enforce his “rights” extra-judicially.

This seems like an astonishing and even shocking turn of events and it boggles the mind that the City of Cape Town has played along with it. They should surely have obtained an urgent interdict against Chabaan and his underworld associates prohibiting them from interfering with the traders on Greenmarket Square in any way? Obtaining such an interdict would have put Chaaban and his spokesperson Juan Duval Uys (a bulsh*tter of note) in the invidious position of either being in conpempt of court or going home.

Instead ID Deputy leader, Simon Grindrod – who seems to have a bit of a Napolean complex – decided to fight naked power with naked power, deploying a large contingent of Metro Policeman on the square. I find this move unwise and disturbing because it sends a signal that having the law on ones side does not really matte: what matters is if one has law enforcement on ones side. It is about who has more fire power – not who has the legal right. Grindrod wanted to show Chaaban that he was in charge, so he created the impression that the City Council was engaging with a thug on the thug’s terms. Does this not make the Council a bit of a thug itself?

Surely if this continues the City will have to option but to get an interdict against Chaaban. And everything we know about Chaaban indicates that he will not give up easily and that he will try and play dirty. It is in such circumstances that the powers that be must show their respect for the law and for the Courts and must rather go to court for an interdict. If Chaaban continues with his treats and bluster and the City Council fails to get an interdict against him, it will be little less than a scandal.

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