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 November 2006

Chief Justice Pius Langa to the rescue

Chief Justice Pius Langa’s has an almost sphinx-like public persona. He is obviously by nature a shy man, but as Chief Justice he has perfected the art of talking without saying anything remotely controversial or, alas, interesting.

This is not criticism of Justice Langa – more a form of praise. One probably does not want a Chief Justice shooting from the hip like a Justice Dennis Davis or (god forbid) John Hlope.

The fact that the Chief Justice found it necessary to make a statement about the SCA’s mistake in the Schabir Shaik case, is therefore something we should take notice of. It suggests that while the spat has no legal consequences, it is seen to have done grave damage to the credibility of the judiciary.

The Chief Justice therefore obviously felt that he had to intervene. He does so by stating the obvious:

The legal system is not premised on the absence of mistakes. It is precisely because of this consciousness of human fallibility that the system provides checks and balances by way of appeal and review by higher courts to correct any errors that may have had a material outcome on a case.

But we all know this of course. The problem in this case is that politicians such as Zwelenzima Vavi and Fikile Mbalula have exploited this blaps for political gain. BY making a mountain out of a molehill they have managed to convinced many people out there that our judges are not to be trusted.

It is ironic that the very people bemoaning the alleged misuse of state institutions for political gain, see no problem in undermining the judiciary for short term political gain. In direct criticisms of the Vavi’s of the world the Chief Justice states:

It goes without saying that there is a heavier responsibility on people in positions of responsibility to desist from indulging in a free-for-all of public recrimination and vilification of the judiciary. Conduct of that sort not only undermines the Constitution, but it can have the effect of weakening both the judiciary and our democracy.

I don’t think judges should be above criticism – although some judges do sometimes behave as if they think they should be. It is unacceptable though to attack the judiciary in a way that goes beyond criticism of the merits of a case.

The way Vavi misrepresented the mistake of the SCA as an earth shattering display of bias on the part of the judges is therefore unforgivable. As the Chief Justice has clearly understood, such attacks are really attacks on our democracy itself.

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