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 June 2008

Constitutional Court lambasted for Hlophe complaint

Paul Ngobeni, a controversial University of Cape Town legal adviser (see here, here and here) has written an open letter to the judges of the Constitutional Court, lambasting them for their joint complaint against Judge President John Hlophe. The letter, published in the Business Day this morning, argues that the judges acted as a kangaroo court by making a joint complaint to the Judicial Services Commission.

Money quote:

In simple English, no matter how the remaining court members viewed the complainants’ credibility, these complainants had no business participating further in the matter in any judicial capacity whatsoever. From the moment they raised the matter, they were partisans in the controversy and the rest of the court was duty-bound to restrict or curtail their participation in it, in strict conformity with natural justice.

Furthermore, by adopting the said complaint as a consolidated “class action” complaint by all judges of the Constitutional Court (including those who were not contacted by Hlophe) you have effectively put judicial imprimatur on a one-sided complaint process and made findings you felt emboldened to publicise in the press, notwithstanding that the accused had not been afforded a due-process hearing.

The Hlophe case cried out for extreme caution aimed at ensuring the impartiality of the remaining uncontaminated pool of jurists. Sadly, your court threw these hallowed constitutional principles overboard and unleashed a media frenzy at Hlophe’s expense. In egregious violation of the principles of natural justice, Hlophe was denied an opportunity to respond — he was just tarred and feathered in the press as a corrupt judge.

In what court would Hlophe challenge the decision on procedural or constitutional grounds, given that the entire court has transformed itself into a complainant? You may have unleashed a tiger of a constitutional crisis that is destined to haunt us all for many years to come.

Interesting argument! I will try to respond to it later when I have some time. Needless to say, I do not agree with Mr Ngobeni who is no stranger to legal troubles. A bit like Judge President Hlophe himself.

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