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
7 December 2007

Jackie Selebi ≠ Jacob Zuma = abuse of state power?

The Mail & Guardian reports this morning that Police Commissioner Jackie Selebi (pictured) will be charged as early as next week “if the National Prosecuting Authority (NPA) have its way”. The Mail & Guardian then continues to state quite remarkably that:

Now the only potential obstacle is Mpshe’s political superiors. An NPA source quipped this week that if Mpshe did not consult Mabandla prior to charging Selebi, there would be an “acting acting” prosecutions head.


Mpshe is of course acting as prosecutions head because Vusi Pikoli was suspended by President Mbeki for issuing an arrest warrant for Selebi – although the various contradictory reasons given for the suspension by the Presidency never actually admitted this obvious fact. At the time, I argued that the President may have acted illegally and even that the terms ofreference issued by the President for Frene Ginwala to investigate whether Pikoli should be permanently removed from his office my have made her enquiry illegal because it failed to address the issues for which Pikoli could legally be fired.

It is quite shocking that the Mail & Guardian could report quite blandly that the NPA boss’ political superiours could perhaps still stop the arrest and prosecution of Selebi. What the paper is saying, quoting from NPA sources, is that the President – through his Minister of Justice or other underlings – may be prepared to subvert the Constitution to protect one of his friends or allies. Because the Constitution prohibits the political superiors form interfering with individual decisions made about the arrest or charging of anyone – including the National Police Commissioner.

If I was the President of the country, I would be furious at such an allegation because it would suggest that I would stop at nothing to protect my friends and that I was therefore really a corrupt person who believes that friendship or loyalty is more important thatn the law or the Constitution. It would also suggest that the President could have stopped the investigation and prosecution of Schabir Shaik and of Jacob Zuma – but chose not to.

This would confirm all the worst allegations by the Jacob Zuma camp that Mbeki and his supporters have illegally and unconstitutionally used state institutions to settle scores (“fix your enemies”, I believe the President would call it) and thus that the President is not to be trusted with any power under any circumstances ever.

Strange then that the President has never responded to criticism of his suspension of Vusi Pikoli couched in the above terms and that he has not lashed out on his Blog against those of us who have in essence called him an abuser of power and a liar (because he pretends to obey and respect the Constitution and thus to have no other choice but to relieve Jacob Zuma as Deputy President of the country and “allow” him to be prosecuted, while in effect he has unconstitutionally exrecised influence over who gets investigated and prosecuted and who not).

This goes to the heart of the so called succession race and is one of the reasons so many people do not want to see the Presidnet re-elected for a third term as ANC President. It also goes to the heart of his credibility and integrity. Why has he not lashed out at us for our “racism”, colonial mindset, backwardness or unsophistication? Why has he not written an article pointing out that there are no “objective facts” that can prove that he has ever influenced any decision of the NPA to prosecute or investigate anyone?

Maybe he has not done so merely because he thinks as President he should have the power to influence NPA decisions (through his Minister or legal advisers if need be)? Or maybe it is not possible to make a clever argument about this because it is all true and to deny it would merely draw attention to the abuse of power?

Whatever the reason, in the public mind it has now so firmly been established that the President has abused his power in an unconstitutional way to influence NPA decisions that the Mail & Guardian can report on it glibly and can even quote an NPA insider in a jokey way. Then the people around our President still wonder why he so badly lost during the provincial nomination process against Jacob Zuma? They cannot understand that the NPA pursuit of Jacob Zuma probably tainted the President more than it tainted Zuma with the rank and file of the ANC.

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