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
2 March 2009

Can Zuma pardon Shaik, himself?

Well, I will have to see it to believe it: in an interview with The Weekender President designate Jacob Zuma said that lazy and corrupt politicians will be recalled once he takes over.

“No person, whatever level – whether national, provincial, or local – must stay in office if they are not able to be effective and deliver.”

Of course, if this was true, Zuma might yet win over the chattering classes. Lazy and corrupt politicians are not well regarded amongst the chattering classes (them stealing from the poor, in effect), so if Zuma really recalls such politicians he will become a hero with the media and the chattering classes.

Problem is, with Winnie Mandela, that convicted fraudster, high up on the ANC election list and even whispered to be earmarked for a Ministerial post, I am not sure this is going to happen. Or perhaps its a question – to paraphrase Bill Clinton – of what your definition of ¨corruption¨ is? Maybe corruption and laziness are passwords for anti-Zumaists?

In any case, in the same interview Mr Zuma said that he will consider giving his former financial adviser Schabir Shaik, who is serving a 15-year sentence for fraud and corruption, a presidential pardon if his application falls within the law.

He says given Shabirs ill health, he should have been released long ago. “Not just because of my sympathy, but because of the law of the country,” he says. “If it had been someone other than Shabir, he would have been out by now.

“The prison authorities described to me a report given by professors who had come to check on him, professors from the medical aid company checking to see if he was cheating by being in hospital.

“These professors said to the prison authorities they were sitting on a time bomb, this man could go any time. This is the law. Once a man is sick at a particular level, there are options.”

Well, Mr Zuma seems to be confusing the role of the parole board with the role he would have as President in terms of section 84(2)(j) of the Constitution to pardon or reprieve offenders and remitting any fines, penalties or forfeitures. But be that as it may, will such an action on his part be reviewable?

In the case of President of the RSA v Hugo President Nelson Mandela pardoned some categories of female prisoners and the Constitutional Court was asked whether such an action was reviewable and if so under which circumstances.

In that case the Constitutional Court affirmed that a decision to pardon or repreive prisoners will in principle be reviewable by the courts, but said that where an individual decision is made to pardon or repreive a prisoner it will only be in extraordinary circumstances that such a review will be succesful.

One will have to show that the President acted in bad faith, or his actions were arbitrary or capricious – in other words irrational. Whether the decision to pardon or repreive was a wise one or even an ethically acceptable one would not be in issue. Only where it could be shown that the President had acted in bad faith or a corrupt manner (say because he was given money), would the court interfere with this constitutional power bestowed on the President.

So, in my opinion this would mean that Mr Zuma would not be able to pardon HIMSELF, as this would clearly be done in bad faith and would undermine the Rule of Law – one of the founding values of the Constitution – in the most fundamental manner.

But it would be more difficult to argue that the pardoning of Shaik was done in bad faith or was arbitrary or capricious. This is because despite the fact that Mr Zuma clearly has an interest in this case, Mr Shaik is reportedly ill (although some people are a bit sceptical about his illness) and when asked for reasons for his actions Mr Zuma could point to the fact that he was never called as a witness (well, he did not offer to be a witness), and that he was never charged for more or less the same crime.

Would such an action be in bad faith? Probably. Would the Constitutional Court interfere with this Constitutional power bestowed on the President? I really do not know. In some cases where highly charged political issues came before the court – such as the floor crossing legislation and some of the election cases – the Constitutional Court seemed to ennunciate a principle that it would be slow to interfere in politically highly charged cases where no specific right had been directly implicated.

Before the Doctors for Life and Matatiele cases I would have said that the Court would never intervene and would argue that if Mr Zuma pardons Shaik it would be for the electorate to punish his craven behaviour at the next election. But in the latter cases the court seemed perhaps a bit more open to examine the actions of the legislature or executive and so I am really not sure how such a case will come out.

In any case, it would be worth while challenging such a pardon and forcing the President to justify his actions – that is what democracy is really all about, after all. And then it would be up to the electorate top decide if they wanted a President who pardoned his friends who had been convicted of bribing the President himself.

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