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
1 March 2007

Haikona Motata…

There was a mixed reaction to my comments here and here about Justice Motata’s appearance on Tuesday in chambers rather than in open court. While some emails lauded me for the harsh tone of my remarks, others argued that the prosecutor, Nazeer Cassim SC (degrees not obtained in Bulgaria, I presume), did not do anything that was illegal.

I do not want – and may not be competent – to argue about the question whether the action was legally acceptable or not. My point was that those involved should have acted according to the tenets of the Rule of Law, which requires an acceptance that we are all equal before the law and should not be treated differently because we happen to be rich and (at least in their own eyes) important.

Judge Motata evaded his constitutional and ethical responsibility – as a servant of the Constitution – to face the music. He most probably expected and demanded special treatment and was afforded such treatment, sending a signal that all are not equal before the law.

The response of critics also seems to be part of an emerging trend in public discourse according to which we are told that we are not allowed to judge public figures unless we can prove that they have broken the law and had committed a crime.

Thus Mr Jacob Zuma is “innocent until proven guilty” and we can therefore not ask awkward questions about why he took more than 1 million Rand from a convicted fraudster and then did favours for him in return while lying about it in Parliament.

Thus Commissioner Jackie Selebi admits that he is good friends “finish en klaar” with a person arrested for murder and we are told we must first prove he is corrupt before we start blaming him for nothing – how very dare we! Never mind that Mr Selebi has never denied the allegations that the accused had bought him expensive clothes and made some other payments to him.

There is a long list of such incidents where, in an Orwelian twist, those caught with their pants down are cast as the victims and those who ask the difficult questions about their nakedness are cast as the villians.

It is time that we eradicate the term “innocent until proven guilty” from the political discourse and reserve it exclusively for sparce use in the courtroom in criminal trails. It is used out of context to protect scoundrels and crooks and to demonise those who do not want to stop asking the questions that must be asked to help safeguard our democracy.

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