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
2 April 2009

For the record….

Cape Judge President John Hlophe’s lawyers wrote a letter to the Judicial Services Commission on March 27, accusing it of bias and raising several issues on the intended procedure to be used by the JSC. For the record I post here a list of the concerns. Judge for yourself whether these are valid or not:

* The absence of any protection for judicial independence,

* That the judges of the Constitutional Court did not formally lay a complaint against Hlophe after he allegedly approached two Constitutional Court Judges to influence them on a case regarding Jacob Zuma’s alleged involvement in the arms scandal,

* That the JSC remained silent when the complainants (the Constitutional Court judges), continued to deal with the content of their complaint against Hlophe in judicial proceedings,

* The Judges of the Constitutional Court issued court directions and invited the litigants in the matter,

* That the JSC took an adversarial position in litigation when Hlophe went to the courts to defend his constitutional rights (instead of remaining neutral),

* That the JSC took a posture denying Hlophe from processing his complaints quickly while they allegedly helped to fast track the resolution of the complaint when the judges of the Constitutional Court applied for leave to appeal,

* That the JSC proceeded to set dates for the hearing on the merits of the complaints, as if the outcome of the appeal by the Judges of the Constitutional Court to the SCA was already known to the JSC,

* That the JSC’s outlines of the areas of its inquiry are clearly one-sided and biased in favour of the Constitutional Court judges. (That the majority of the issues which were pertinent for Hlophe were not scheduled for consideration),

* That judges are under a duty to protect judicial independence when making complaints about other judges,

* That Justice Jafta revealed a part of the issues covered in a conversation with Hlophe, while at the same time making only partial disclosure of the information,

* That the JSC does not deal with the apparent contradiction in which the two judges are disavowing any intentions to be complainants or to make any further statements in the matter,

* That the JSC never sought clarification for the separate legal representation regarding this matter and the fact that lawyers who purport to represent all the judges are now speaking on their behalf, contrary to their stated position,

* That it is apparent that Judge Kate O’Regan played a significant part in developing, formalising and finalising the complaint, yet the JSC excluded her from the list of witnesses,

* That the JSC imposed on the parties its own ad hoc procedures and its own choice of the witnesses, without consulting Hlophe,

* Not all 13 Constitutional Court judges, who were identified as complainants, were chosen as witnesses, and Hlophe asks why certain judges were exempted from testifying,

* That the JSC has chosen Hlophe as a witness without consulting him,

* That the areas that the JSC had outlined for the investigation demonstrated clear bias.

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