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 May 2009

Cosatu can do better

I am deeply disappointed in the leadership (and legal and political advisers) of Cosatu in the Western Cape. The ANC-led Alliance was handed a public relations coup when Premier Helen Zille appointed ten men to her cabinet and then tried to defend this decision, not by singing the praises of her new cabinet and explaining how the cabinet would deliver services to the poor, but by personally attacking the ANC and Jacob Zuma.

But now Cosatu in the Western Cape is acting in a manner that is both politically unwise and legally uninformed and is in danger of losing the moral high ground in this fight.

First, Cosatu pulled a cheap – but ultimately doomed – stunt by launching an ill-advised equality court application to challenge the composition of the Zille’s cabinet.

Now Die Burger is reporting that Cosatu is threatening to institute a motion of no confidence in Zille and her cabinet via their ANC allies in the Provincial Legislature. If that does not work, it is threatening to use section 109 or 125 of the Constitution to unseat Zille.

Section 141(2) allows the Provincial legislature to pass a vote of no confidence in the Premier and her cabinet which would force the Premier and her cabinet to resign and would require a new Premier and cabinet to be appointed. But this is not a secret vote, so if any DA members voted for this motion they would be fired and new DA members brought in, which would allow Zille to be re-elected as Premier and to appoint the very same cabinet.

Section 109(1) allows the Provincial Legislature to adopt a resolution that would resolve the Legislature and have fresh elections, but only if at least three years has passed since the previous election, so it could not be relied on. Section 109(2) allows the Acting Premier to dissolve the Legislature if a motion of no confidence in the Premier and the cabinet has been adopted, and the Legislature has been unable to elect a new Premier within 30 days.

Section 125 does not seem to be applicable at all as it deals with the executive authority of the Provincial cabinet.

These moves will ultimately all be unsuccessful. The DA has an outright majority in the Western Cape and unless some of its members are on a suicide mission, they will never vote in favour of a motion of no confidence or for the dissolution of the Legislature for fresh elections to be held. This is because such a vote is not done by secret ballot and any DA member who votes for it will summarily be booted out of the party and lose their seats.

The stunt is also politically unwise because it suggests that Cosatu and the ANC is unwilling to accept the democratic will of the people of the Western Cape. Such a move would hand Zille a very big political gift because she would be able to argue – as she will surely do – that Cosatu and the ANC is anti-democratic and is trying to get rid of her because they do not like the verdict of the voters. Suddenly her all male cabinet and her disastrous attack on Zuma would have been forgotten and the Alliance would be painted as undemocratic spoilsports.

If Cosatu and the ANC want to demonstrate their unhappiness with the appointment of a ten man cabinet, while simultaneously displaying a respect for the democratic process, it could institute a vote of no confidence in Zille’s cabinet in terms of section 141(1). If such a vote of no confidence were to be successful (which it would not because the DA controls the Legislature and any DA member voting for such a motion will be kicked out of the DA), Zille would retain her position as Premier but would be forced to reconstitute her cabinet.

But the latter move – even if unsuccessful – would highlight the disastrous decision to appoint an all male cabinet without sending the signal that the ANC is a sore loser who does not respect the will of the people. It would be a symbolic gesture, working within the spirit and letter of the Constitution, to try and make an important political point about the ten man cabinet.

The fact that Cosatu has not raised this as an option invariably creates the impression that it is anti-democratic and hands Zille a propaganda coup of her own. Better to work within the letter and spirit of the Constitution and to keep the focus on the real issue – namely that Zille appointed a ten man cabinet of varying ability to try and placate her political enemies within the DA. This will allow the Alliance to argue that Zille is guilty of the worst kind of cronyism and that her attacks on ANC cronyism is hypocritical and self-serving.

Politics can be a dirty business, but surely we all have a duty to respect the will of the electorate and not to send signals that could be interpreted as anti-democratic? Cosatu can do better but, like Zille, they seemed to have been influenced by personal animosity instead of sound legal and political tactics.

The electorate deserves better from all of them.

2015 Constitutionally Speaking | website created by Idea in a Forest