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
9 October 2007

Ginwala enquiry on shaky legal ground

The more we learn about the suspension by President Thabo Mbeki of National Director of Public Prosecutions, Vusi Pikoli, the more difficult it is not to conclude that the President has overstepped his authority and has abused his power to protect his friend and political ally, Jackie Selebi.

This is a very serious claim to make. If correct, it would suggest that our President has behaved in a way that failed to respect the Constitution and the law which he has sworn to uphold in order to achieve an impermissible or even illegal objective. It would constitute a “constitutional crisis” of the first order because it would suggest that the President believes that some constitutional and other legal rules do not apply to him as long as he can cite “national security” concerns.Frene Ginwala

Exhibit 1 in my argument is the terms of reference issued by the President Mbeki when appointing Dr. Frene Ginwala (pictured) to investigate Adv. Pikoli. These terms of reference seems, at best, legally irrelevant and, at worst, seems to amount to an unconstitutional interference with the obligation of the National Prosecuting Authority (NPA) to exercise its functions “without fear, favour or prejudice”.

The President instructed Dr. Ginwala to determine whether Adv Pikoli is fit to hold the office of National Director by looking at:

o Whether Adv Pikoli, when exercising his discretion to prosecute offenders, had sufficient regard to the nature and extent of the threat posed by organised crime to the national security of the Republic.

o Whether Adv Pikoli, in taking decisions to grant immunity from prosecution to or enter into plea bargaining arrangements with persons who are allegedly involved in illegal activities which constitute organised crime, took due regard to the public interest and the national security interests of the Republic.

o Whether the relationship between the National Director and the Minister has irretrievably broken down.

Now, as I have pointed out before, the National Prosecuting Authority Act allows the President to suspend and ultimately remove the National Director from office only for objectively determinable reasons, including for misconduct or on account that he is no longer a fit and proper person. At the same time the Act – giving effect to the Constitution – safeguards the power of the national director to make prosecutorial decisions without fear, favour or prejudice.

That is why the Minister is not given any power by the Act to interfere with individual decisions of the NPA or its director and why she is prohibited from stopping any investigations or prosecutions. If the Minister is not happy with the way the National Director exercises his discretion or applies the act or the prosecution policy which she had agreed to, she can have the law change by Parliament or can have the policy reviewed.

By directing Dr. Ginwala to look into the exercising of Adv Pikoli’s discretion and the taking of decisions, the President is really allowing the enquiry to focus on matters that are beyond his or his Ministers’ legal purview.

More seriously, such an enquiry is sending a signal that decisions of the National Director – even if those decisions fall within his legal powers and do not constitute an abuse of power or misconduct – can be reviewed by the executive and can lead to the firing of the National Director in the event of the Minister or the President not being happy with those decisions.

This is untenable: It would be unconstitutional and, yes, illegal and would constitute a gross abuse of power by the President. It sends a signal that the President thinks that he or his Minster has a veto over the National Director’s prosecutorial decisions when they can conjure up some vague notion that the “national interest” or “national security” is at stake. But the legislation does not allow such interference for any reason – including reasons of national security.

The legislation does not require the Minister and the National Director to get along either. Whether their relationship has broken down is therefore also legally irrelevant for purposes of his removal. It would be untenable for the President to be allowed to fire the National Director every time his Minister is unable to get along with the Director because the Director is refusing to follow the illegal and unconstitutional instructions of the Minister on individual prosecutorial decisions.

No, I am sorry to say but the Minister and the President is way out of line. The best we can hope for is that they have been given bad legal advice. (Reading the judgment of the Constitutional Court in the Billy Masetlha case, it is clear that the President has spectacularly bad lawyers advising him – they seem to be working for Faulty Towers, not the Presidency.)

Let us hope that Vusi Pikoli vigorously challenges the legality of the enquiry and that he is prepared to take the matter to the Constitutional Court – if necessary. Unlike in the case of the firing of the National Intelligence Chief, Billy Masethla, I suspect the Constitutional Court will have serious problems with the legal basis for the firing of Adv Pikoli.

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