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
18 January 2011

Insurance for a rainy day?

Lat last year I took a bet with a friend. I will buy him a good bottle of red wine if President Jacob Zuma is not elected for a second term as ANC President (and then as President of the country). He will buy me a good bottle of red wine if Mr Zuma is elected to a second term. Maybe I will lose this bet. But I don’t think I will.

President Zuma is widely underestimated in South Africa. By this I do not mean that Zuma is a competent manager or visionary leader who is going to be one of South Africa’s great President’s. On the available evidence very few people would be able to claim with a straight face that he is either a competent or a visionary President. In fact, he often gives the impression that he is completely out of his depth, that he is incapable of leading the government of a complex country like South Africa and that others like Kgalema Motlanthe and Gwede Mantashe are really doing the work and the thinking required of government while he smiles and giggles and bumbles along. (Maybe this impression is wrong, but then President Zuma is doing things in private which he seems unable to articulate in public – especially in unscripted interviews.)

No, President Zuma is underestimated as a political survivor. To this observer it seems as if almost every decision President Zuma takes — either as President of the country or President of the ANC –  is calculated to ensure the political survival of Zuma inside the ANC and as head of state. Whether it is the way he has dealt with Julius Malema or the way he is dealing with economic policy, my impression is that he takes decisions (or declines to take decisions) based not on what he thinks is best for the country but what he thinks is best for himself and by extension the ANC. (Sometimes, when we are lucky, these things even overlap.)

Maybe President Zuma has learnt the lesson of that other guy whose name we hardly remember these days (you know, that guy with the criminal ideas about HIV) and maybe this is why Zuma is focusing on keeping control of the ANC and leaving the governing of the country to more competent people. When Thabo Mbeki  lost his grip on the ANC it was not long before he was stabbed in the back and ousted as President and whitewashed out of the ANC history. All his clever, technocratic plans, counted for nothing.

(This is different from Helen Zille, who seems to take decisions because she has convinced herself that she knows everything, that she is always right and that she is saving Cape Town, the Western Cape, South Africa and the world from the stupidity and dangerous vacillation of those lilly-livered individuals who believe in the outrageous notion that the world is a complex place and that there are often two sides to a story and many nuances to an issue that makes it rather difficult — if not impossible — self-righteously to claim always to have the final answer.)

President Zuma’s appointment of Menzi Simelane as National Director of Public Prosecutions was widely seen as an attempt to protect himself from any further possible prosecution. He has also appointed his friends and buddies (of different shades of competence and honesty) to all the major positions in the security cluster. If one controls the intelligence services, the army and the police force as well as the Prosecuting Authority, one is well on one’s way to a second term as President (and a third and fourth term as well — if one wants them).

This is why the President’s new appointments to the NPA does not come as a surprise. I could not say it better than the Business Day editorial:

THE appointment by President Jacob Zuma of advocate Nomgcobo Jiba as deputy national director of public prosecutions is disturbing, but sadly also unsurprising. It follows a worrying trend in the Zuma government of appointing supplicants and allies to key positions within the security establishment.

Some of these people may surprise us by being effective so, by rights, judgment should be suspended until they have proved themselves in office. But it must be said that the omens do not look good.

Ms Jiba’s record of prosecutions in prominent cases seems light for someone who is being promoted to such a senior post. Her only notable claim to fame so far is that she was facing charges for undermining her superior at the time, senior prosecutor Gerrie Nel. The charges were dropped, as were the charges that she was apparently involved in instigating against Mr Nel.

Mr Nel was, however, shockingly arrested in 2008 in what appeared to be a bid to disrupt the investigation into former police commissioner Jackie Selebi. Ms Jiba was suspended by then acting national director of public prosecutions Mokotedi Mpshe for her part in this alleged conspiracy.

Mr Nel was responsible for successfully bringing a criminal case against Selebi. In most places in the world, anyone responsible for successfully prosecuting the former chief of police and head of Interpol would be regarded as a national hero. But Mr Nel was leapfrogged by the very person who was accused of being involved in a conspiracy to try to halt that case.

The other appointment made at the weekend was that of Nomvula “Pinky” Mokhatla to deputy national director. She too is without any notable achievements in law enforcement to her name as yet.

The political message seems clear: the African National Congress (ANC) is trying to make sure none of its senior members get to be the target of an investigation that so embarrassed the party and Mr Zuma over the past few years.

Yet the result is likely to rebound on the party, which is steadily blunting the sword of justice. Without this sword, the ANC will be without the tools to fight corruption within the party and the country, and that will ultimately degrade both.

2015 Constitutionally Speaking | website created by Idea in a Forest