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
2 June 2008

Judge President of KwaZulu/Natal on Hlophe

The IOL website reports the following comments from Judge President Vuka Tshabalala which more or less sums up my view as well:

KwaZulu-Natal Judge President Vuka Tshabalala has reacted with shock and astonishment to allegations that his embattled counterpart, Cape Judge President John Hlophe, had tried to influence two Constitutional Court judges to make a ruling in favour of ANC president Jacob Zuma. Asked to comment, he told The Mercury: “It never happens that a judge will go to another court and tell them what to do… I think it is so ridiculous that it is unbelievable. I can’t believe that it has happened.”

Judge Tshabalala was attending a top-level meeting of senior South African and Indian judges in Durban on Sunday. He made it clear that he was not defending Judge Hlophe, only that he found it unbelievable that something “so astonishing, so out of the way and so irregular” could have occurred. “If I said it was unlikely, I would be saying all the (Constitutional Court) judges are lying. It is something any normal judge would not do,” Judge Tshabalala said.

That is why it is not an ordinary case in which one must wait for all the “facts”. Either the judges of the Constitutional Court made this up, or Judge President Hlophe has tried to influence a decision that would have helped him to become Chief Justice. There is no room to believe both sides. I believe the jduges of the Constitutional Court and I think any patriotic South African really have no other choice. To believe otherwise would require one to believe in a conspiracy of the most absurd and elaborate kind. A bit like believing in Father Christmas or the Tooth Fairy.

That means Judge President Hlophe must resign. No matter how unpalatable this might be for some people who have seen the racism at the Cape Bar and on the Cape Bench and (wrongly) see Hlophe as the champion of transformation. This is larger than merely the issue of one judge and his manufactured crusade against the (very real) racists in the legal profession.  It goes to the heart of the integrity of the whole judicial system which have now been tainted by the Judge President in the most unseemly manner. If it is not dealt with fast and decisively, our judicial system will lose all credibility.

One more thing. I am quite surprisied that Mr Zuma has declined to state whether he knows Judge President Hlophe or to comment at all about this matter. Surely, the best and wisest thing for him to do is to say categorically that he does not know Hlophe, have not met with him and have not asked him to intervene on his behalf. That would be very clear and simple and would surely even reassure Helen Zille.

Unless of course, he cannot make such a statement without being economical with the truth. Then it would make sense not to comment on whether he knows the Judge President or has spoken to him. It is impertive the Mr Zuma clears this up because his refusal to categorically state that he does not know Hlophe and has not spoken with him raise serious questions about his involvment.

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