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 February 2007

Desperation Stations……

Schabir Shaik’s lawyers have been taken to task for “manufacturing” constitutional issues in the State’s answering affidavit to the Constitutional Court. The papers form part of the application from Shaik’s legal team for leave to appeal to the Constitutional Court.

The big problem for Shaik seems to be that his lawyers never raised any constitutionally related complaints in either the High Court or the Supreme Court of Appeal. According to a report on News24 the State’s special investigator Johan Du Plooy argues that:

Shaik and his legal team have attempted to “manufacture” constitutional issues by putting forward new evidence that played no part whatsoever in his trial or the appeal case. Du Plooy says Shaik’s application rests largely on about 3 000 pages of “factual material” that did not appear anywhere in the appeal case. He says the applicants (Shaik and his companies) “have made little attempt to demonstrate that (the appeal court) erred in its analysis of the evidence before it”.

He argues that the application for leave to appeal “is based almost entirely on new evidence, which is alleged to give rise to constitutional issues”. He says most of the new material emanates from the Zuma trial and the State’s application for postponement.

If this is true, it is difficult to imagine that the Constitutional Court will allow leave to appeal. They have to find that there were indeed constitutional issues at stake, that there was a reasonable prospect of success in the appeal case and that it was in the interest of justice to grant leave to appeal.

But if such issues were never raised, and if they are now raised in the vague and conspiratorial manner of the Zuma documents, the Court will be extremely reluctant to grant leave to appeal in the Shaik case. Granting leave to appeal might set a precedent for other rich criminals who wish to have a last bite at the cherry to avoid jail time.

But maybe the lawyers know their case has little chance of success. Shaik may be playing a more long-term game, hoping to keep alive the conspiracy theories hinted at by Jacob Zuma, to further Zuma’s political ambitions. We have seen that the air has gone out of Zuma’s campaign since the suspension of the case against him. Providing another platform at the CC for these allegations to be aired, may help to remind people of the alleged “terrible injustice” done to Mr Zuma.

If Zuma is President, he will, after all, have the right to pardon Shaik. And his buddies will be ministers in a government with power to issue many lucrative contracts.

Naaah! Surely I am now turning into a conspiracy theorist myself. Or not?

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