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
28 November 2006

Chihuahua or Rottweiler?

Most observers would agree that Parliament has not covered itself in glory over the past twelve years. It is supposed to be a watchdog over the executive but has been more Chihuahua than Rottweiler.

Recently this has started to change with some of the Portfolio Committees of the National Assembly taking decisive steps to probe the executive and to expose maladministration and incompetence.

Members of the executive (the real Rottweilers?) have been biting back, with Deputy Minister and resident bully, Johnny De Lange, complaining recently about the bad legal counsel in Parliament.

No wonder then that Speaker Baleka Mbete is reported in today’s Business Day as complaining about attacks by the executive on members of Parliament for fulfilling their oversight role.

According to Business Day:

Mbete said she had had a meeting earlier this year where she was told that ministers were not happy with some of the questions MPs were asking them. She had told the executive to draw up a document on the matter. However, she said she had not yet received it.
This is of course all Jacob Zuma’s fault. With the battles raging inside the majority party and resident Thabo Mbeki’s power slipping away, some MP’s have stopped fearing for their political futures and have started thinking for themselves.

But once a successor is safely ensconced in the Presidency all this independence may come to an end. This is not – as the DA would say – because ANC MP’s are spineless and unprincipled but because the system does not really give them a choice.

The problem is that in a pure proportional representation system with strong party discipline and party deployment where party leaders have a strong say in who appears where on party election lists, it will be political suicide for an MP in the National Assembly to rough up a cabinet minister.

Tomorrow that same cabinet minister will decide whether you should be deployed to Khazakstan as South Africa’s new cultural attaché.

Two things should happen before MP’s acquire permanent back bone. First, there should be a change in the electoral system to allow a majority of MP’s to be directly elected in constituencies. Second, legislation should be adopted similar to that in Germany that regulates and ensures internal party democracy in the election of representatives.

Both such moves would fundamentally weaken the hold of the party leaders over the party. It is therefore probably not going to happen. The leaders of both the DA and the ANC enjoy the control they have and will not easily give it up.

The best bet for us mere mortals is for an election result down the line that produces a hung Parliament like the hung council in Cape Town. If, say, the ANC obtains 40% of the vote, the SACP, 10% and the DA 20%, it will make for a much more interesting and effective Parliament.

Blade, can you and your party make the jump into electoral politics?

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