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
21 October 2010

Dan Plato’s Republic and the chamber of secrets

Secrecy, so it seems, is a contagious disease – and it is spreading fast throughout our body politic. At first the disease was contained to the ruling party (or so the media led us to believe), but now it has also spread to the Democratic Alliance (DA) and Mayor Dan Plato’s Republic here in Cape Town. If we do not stop this disease in its tracks, our democracy will suffer.

Everyone in South Africa – except, perhaps, for the Chief State Law Advisor, one or two ANC MP’s and, I suspect, one or two inmates of Valkenburg – are well aware that if the proposed Protection of Information Bill is passed in its current form it will empower officials to classify documents to hide corruption, maladministration or other information that might embarrass the political party in charge of a municipality, province or the national government.

But because secrecy is so contagious this has not perturbed some politicians from defending the Secrecy Bill and from attacking those who demand democratic accountability. I am reminded of the immortal words of that serial floor-crosser and ANC MP Cecil Burgess, the chairperson of the ad hoc committee handling the Protection of Information Bill, who complained that some people were overreacting to the Secrecy Bill because they were “obsessed with openness”?

Then there is the Minister of Defence, Lindiwe Sisulu, who was also struck by the secrecy bug and refused to provide the National Assembly Portfolio Committee of Defence with reports that she is constitutionally required to provide to it. I had hoped that this was not a serious illness but, alas, I was wrong and last week it became apparent that the Minister is suffering from a very serious bout of secrecitis when she refused to provide details about President Jacob Zuma’s official trips taken on his Presidential jet or on other state provided flights. The cost of all of these trips as well as the number of passengers accompanying him on the trips are now all state secrets.

I would, of course, not want to second guess the Minister who must surely have a very good reason for not revealing the cost of these trips to the public who is paying for them through the tax system. Who knows, maybe this information will be used by the Lesotho navy when that country decides to invade South Africa one day. Once information about the cost of past trips taken by our President are in the hands of the Lesotho navy, they might use this in a devious and dangerous manner to determine the state of mind of our President in order to time their invasion for maximum effect. (Maybe there are other reasons for this secrecy but if there are, I am far too stupid – or perhaps honest – to think of any such reasons.)

And yesterday, Khayelitsha members of the Social Justice Coalition picketed outside the Cape Town Civic Centre, demanding that the DA-controlled city release a “secret” report compiled after an internal investigation into the Makhaza toilet scandal. The coalition said the city told it that the city had “no responsibility” to release the report – but the coalition will not accept that.

Now, if only that Protection of Information Bill had already been passed, the city could have classified the report as secret or top secret (the secrecy being in the “national interest”, you see) to prevent the bloody Social Justice Coalition from demanding that the DA practice what it preaches. Unfortunately for the City, the Bill has not been passed yet, so it is still required to release the report and cannot hide behind the Secrecy Law.

I am sure that the City of Cape Town might argue that section 44 of the Promotion of Access to Information Act (PAIA) allows it to withhold the report because it contains “an opinion, advice, report or recommendation” obtained or prepared “for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law”.

But in probably one of the greatest ironies of the past ten years, I am not sure that the city council would be successful with such an argument. This is because section 46 of the same Act states that where the disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law; or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question, the information has to be released – even if it was obtained in order to formulate public policy.

Like many of us, the DA has argued that one of the biggest problems with the Secrecy Bill was that it did not contain such a public interest override clause. Here one can see very clearly why such a public interest override clause might be necessary. Ironically, in the case of PAIA, this very clause will now make it rather difficult for the City of Cape Town to keep the report secret, given the fact that DA councillor Owen Kinahan himself had said that the actions by the city council on which the report was based was probably unlawful (an argument I made on this Blog as well).

One might therefore be forgiven for suspecting that the report contains information about unlawful action and that the public interest in making the report public far outweighs any harm that might ensue if it is made public. As far as I can see the only harm that will be done might be to the reputation of one Helen Zille who might look like a rather paranoid and dishonest person if a report commissioned by her own DA controlled government found that the city had acted unlawfully (much like the Human Rights Commission Report did). Unless of course the report says nothing of the sort, in which case there would be no reason to keep it secret.

Without wanting to, the DA is thus demonstrating to the ANC why a public interest override clause is so important and why it should also be included in the Secrecy Bill.  

Seeing that the DA is allegedly a principled and consistent party, one would assume that it would release the Makhaza toilet report forthwith as it is in the public interest to release any report to the public that might expose unlawful activity on the part of a public official or institution.  Of course, if the report suggests that the City Council had acted unlawfully (in contravention of the Water Services Act), then it would really embarrass Helen Zille who has been arguing that a finding to that effect by the South African Human Rights Commission are so proposterously wrong that they were part of an ANC inspired plot.

But surely the DA would put principle before the short term consideration of trying to protect its leader from looking like a complete fool? Surely it has PRINCIPLES?  Surely it would not use taxpayers money to try and prevent the release of the report, given the fact that the party has always insisted that when the ANC does this kind of thing the ANC is acting in a completely unacceptable and dishonest manner?

Personally I cannot wait to read what is in that report and whether it agrees with the Premier or not. And if the DA does not release the report, well, then it would be a bit difficult ever to take it seriously again when it complains about the unprincipled and wasteful ANC government.

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