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
15 April 2007

Hlophe not off the hook after all?

When the Judicial Services Commission issued a statement in December last year stating that there was no evidence to contradict the claims of Justice John Hlophe that he had received permission from the late Justice Minister Dullah Omar to receive retainers from the Oasis company, some of us suggested that the JSC acted in an unprincipled manner.

So it is difficult to know what to make of the JSC announcement on Friday that the commission would wait for the outcome of a defamation case brought against judge Siraj Desai by investment company Oasis Group Holdings before considering a complaint lodged by Advocate Peter Hazel. This move can, of course, be interpreted as another display of spinelessness by the members of the JSC.

But I suspect the announcement may suggest that the JSC has been stung by criticism against them and may be ready to re-open the Hlophe matter. If evidence emerges in the defamation case that Justice Hlophe had lied, he surely must be done for.

Unfortunately, the whole sorry saga is extremely damaging to the credibility of the judiciary. The fact that there is even a vague suspicion out there that the Judge President of the Cape High Court is economical with the truth and perhaps even corrupt, is a disaster for all of us who believe in the Rule of Law and the power of Courts to do good.

The JSC should have dealt with this matter far more decisively and quickly than it did. But because it is such an unwieldy body and because it is highly politicised, it is perhaps not capable of dealing with complaints where the facts are not yet proven.

That is why there is an urgent need for Parliament to pass the draft legislation providing for disciplinary action against judges. The establishment of a judge-driven complaints process against judges will allow for a far speedier and a more legitimate way of dealing with unhappy situations like the Hlophe matter.

Although the Sunday Independent reports today that some judges are upset about some aspects of the new Bill that would potentially limit retired judges from doing other work, the Bill is mostly sound and I believe with some small amendments it would find support amongst most judges.

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