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 September 2008

Is he very, very dim-witted or merely lying?

Sometimes I have to wonder whether some politicians and trade unionists are just very, very dim-witted or whether they are rather more clever than they let on and are just peddling blatant lies to the public for short term political gain. For once, I am not referring to Kortbroek Malema but to Cosatu’s KwaZulu-Natal secretary, Zet Luzipho.

Mr. Luzipho is apparently not happy that the NPA has decided to appeal the judgment of Justice Chris Nicholson in which he found that the NPA should have given Mr Zuma the opportunity to make representations before charging him. According to the Mail & Guardian Luzipho said:

“The fact that NPA wants to continue this case … is a declaration of war on our people.” He said each time the NPA takes Zuma to court, the masses will strike. “And it won’t only be on the day of the court case, but also before he goes to court,” Luzipho said.

The union federation on Wednesday also called for all the other charges against Zuma to be dropped, and that he be reinstated as deputy president of South Africa. “JZ is innocent … you cannot re-establish a case to prove his innocence because his innocence has already been proven.

Contrast this with the following passages from the Nicholson Judgment:

At the outset I must emphasise that these proceedings have nothing to do with the guilt or otherwise of the applicant on the charges brought against him. They deal with the disputed question of a procedural step that the State was required to comply with prior to instituting proceedings against the applicant. If there are defects, at best for the applicant, the present indictment may be set aside. Once the defects are cured, subject of course to any other applications that are brought, the State is at liberty to proceed with any charges they deem meet.

For Mr Lozipho therefore to say that Mr Zuma’s “innocence has been proven” is, well, how shall I put it, a blatant lie. Nothing has been proven except that the NPA did not give Mr Zuma the opportunity to make representations before they charged him. In fact what has been proven (in another case) is that Mr Shaik gave Mr Zuma more than a million Rand and that Zuma then did favours for Shaik and lied to Parliament about this.

As Mr Zuma has never really explained why he took the money, why he did the favours, and why he lied to Parliament about the nature of the money received, most South Africals who have more than two brain cells and are not completely dishonest will legitimately wonder whether he might not – if given the opportunity in open court – be found guilty of very serious crimes indeed.

What the Nicholson judgment also stated was that the decision to prosecute Mr Shaik and his corporate entities, but not to prosecute Zuma:

when there was a prima facie case and bribery is a bilateral crime, was bizarre to say the least. It was a total negation of the Constitutional imperatives imposed on the NDPP to prosecute without fear and favour, independently and in consistent, honest and fair fashion.

Mr. Zuma should therefore have been charged with Shaik. If he was charged at that point, we would now know whether he was guilty or not. However, until such time as a court considers the charges against Zuma on its merits, we can therefore not say whether Mr Zuma is a crook or not – no matter what Cosatu might say. He might be innocent. But then again there seems to be quite strong evidence – given Shaik’s conviction – that he is corrupt, so he might be guilty of corruption. Any reasonable person who has no axe to grind will always wonder about this – unless Zuma is given his day in Court.

To say this is not to show hatred for Mr Zuma or to despise the ANC. It is just logic at work. But as far as Mr Zuma is concern I fear we are far past logic already.

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