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
19 November 2010

CASAC letter to Adv Menzi SImelane on Jules case

18 November 2010

Adv Menzi Simelane National Director of Public Prosecutions National Prosecuting Authority

Per email: msimelane@npa.gov.za

Dear Adv. Simelane,

We write to express our grave concern about your decision to prosecute the female learner in the Jules High School sexual offences matter. We believe that her constitutional rights will be violated in the event of her being prosecuted.

Given the impact of criminal charges (even though the matter has reportedly now been diverted out of the criminal justice system), we worry that this reinforces a punitive approach to consensual, adolescent sex – however inappropriate – rather than an approach that seeks to educate and counsel young people about sex.

In particular, we worry that this prosecution reinforces deeply harmful stereotypes about sex that tend to blame women and girls for sexual violence.

Our primary view is that her prosecution amounts to a victimisation of the victim. Whatever may have, in fact, have occurred between the three young people involved, including the issue of whether she consented to sexual intercourse, it is very clear that the lives of all three, and especially the girl, have been harmed by the events.

From what has been reported in the media, we understand that video footage of the sexual acts allegedly performed has been distributed widely. This has undoubtedly caused further harm to the girl and further impaired her dignity.

We are concerned that no attention has been paid to this aspect of the matter by the NPA, and we believe that the people responsible for the recording and distribution of these video images ought to be prosecuted.

The publicity that the case has received, including the revelation of the girl’s identity, amounts to an entirely inappropriate invasion of her security of the person, privacy and human dignity. The prosecution, and the apparent urgency with which it has been conducted, merely serves to exacerbate her suffering.

There are very important issues of constitutional principle and the public interest that arise in this case which, we submit, need to be given very careful thought by the state and by your office in particular.

Therefore, we urge you to reconsider your decision, and to ensure that the appropriate steps are taken to protect this girl from further harm, while you review not just her prosecution but the policy in relations to such prosecutions.

Given the very wide and serious issues of constitutionality and the public interest, as well as the serious impact that your action has had, we are releasing this letter to the media.

We would welcome an opportunity to discuss these matters with you and invite you to permit us, with you, to facilitate a public debate about the constitutional implications that arise from this case and from cases involving children, and young girls in particular.

Yours sincerely,

Lawson Naidoo

Executive Secretary CASAC

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