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
26 September 2008

Game on…

Mr Jacob Zuma’s lawyers must be worried by the application of President Thabo Mbeki to the Constitutional Court as they have now indicated that they will opppose the application. I am in Berlin at the moment so do not have access to South African newspapers, but from the IOL report it seems that after intensive deliberations the Zuma lawyers decided to oppose.

If they had thought there was no chance of this application succeeding and given the fact that Thabo Mbeki has already been ousted, one might have thought they would have allowed him to go on a frolick of his own without spending more energy on this application.

But perhaps they worry that the highest court will slam the Nicholson judgment and therefore feel that for political reasons they have to oppose the application. This is a rather weird case as Zuma will now oppose an application to appeal a judgment by a person who was not a party to the original application by Zuma.

The decision is an admission, it seems to me, that Zuma has a great interest in ensuring that the inferences made by Nicholson about political interference in his trial is not overturned. Perhaps this is because these inferences will assist Zuma’s lawyers if they want to bring an application for a permanent stay of prosecution.

They might be worried that the Constitutional Court will find that these applications by Zuma have been frivolous and premature and that he was delaying his trial in order to avoid his day in Court. It will be interesting to read their papers and to see what they will say to support the findings of Nicholson that there might have been political interference in the charging of Zuma.

Perhaps they know that this is not over yet and that the NPA still has a trick or two up its sleeve. Of course us tax payers are paying the legal fees for the application and for Mr Zuma’s response. Some might well wonder whether this is the best way to spend our money but for the two sides this seems to be a fight to the bitter end.

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