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 February 2008

Kenneth, how could you?

President Thabo Mbeki seemed rather miffed by the allegations made by Reverend Kenneth Meshoe that the President had lied to the nation when he told the South African Council of Churches to trust him on Selebi, and that no evidence of wrongdoing had been placed before him which would necessitate action against Selebi.

Meshoe’s statement comes after it was revealed that Adv Vusi Pikoli had met with the President on 10 different occasions to inform him about the evidence against the Police Commissioner. According to the President he did not lie and acted against Selebi as soon as the NPA informed him that it had a prima facie case against Selebi.

Having satisfied themselves that they had prima facie evidence suggesting that the National Commissioner had been involved in criminal misconduct, they informed me of this conclusion and their decision to charge the National Commissioner. At this point we informed the NPA that we were ready to assist them to inform the National Commissioner that he should willingly submit himself to the process of prosecution which the National Prosecuting Authority had decided to institute, which we did.


I trust that the Hon Rev Meshoe will explain to this House and the nation why he saw it fit to make the grievous and gratuitous insult which sought to challenge not only the integrity of the person of the President of the Republic, but also the Office of the President and our Government as a whole. It cannot be that this resulted only from the careless use of words!

I am not a great fan of the good Reverend, but I have to point out that there are two fundamental problems with the statement of our President about this matter.

The first problem is, well, that this statement is demonstrably false. It is true that the President asked Mr Selebi to step aside after it became clear that the NPA would not revisit its original decision to charge the Police Commissioner. What the statement fails to admit is that a warrant of arrest had already been issued for Selebi in September and that the President had been informed then about the reasons for this.

A few days after the first warrant was issued, the President suspended the Head of the NPA and the Acting Head of the NPA mysteriously had the warrant canceled.  This means the NPA had satisfied themselves that there was a prima facie case against Jackie Selebi several months ago and had informed the President accordingly. He responded not by asking Mr Selebi to step aside as he claimed in his speech, but by suspending the Head of the NPA.

His statement yesterday in Parliament pretends that this first warrant was never issued  and that he was never informed about the reasons for it. The President had to pretend this first warrant never happened because it was the only way to explain his previous lies to the nation that no one had come to him with evidence of wrongdoing by the Police Chief.

The truth is, the same evidence that led to second warrant against Selebi was used to get the first warrant but the first time the President failed to act. Now he is trying to rewrite history but to rewrite history he is required to lie. This is rather un-Presidential  – Presidents should try not to lie so blatantly as it tarnishes the office they hold. Just ask Bill Clinton.

The second problem with the statement is that it suggests that no one in our constitutional democracy should make statements questioning the truthfulness of statements made by the President because it would constitute an assault on the integrity of the President and the Office he holds.

This view seems to be based on a misguided notion that the President’s integrity should be above questioning and that to question the truthfulness of the President would necessarily show disrepscet to the Office of the President which is not acceptable.

Fact is, the President is a politician. If he lies, we all have a right – no a duty – to call him to account and to try and get him to stop spreading his lies. If disrespect for the Office of the President results from this, it is based on the lies of the President and not on the questions posed by those who wish to expose the lies.

The Constitutional Court confirmed many years ago in the Hugo case that the President is not above the law or above the Constitution and cannot claim immunity from questioning merely because of his office.

In this case, the President clearly misled the country by claiming no one had brought any evidence to him about wrongdoing by the Police Commissioner after he had already met with the NPA boss 10 times and after a warrant of arrest was issued for the Police Commissioner. We have a right to point this out and the President cannot claim to be shielded from the truth – a truth he seems rather shy of – merely because of his office.

He is not the King, he is an elected President and should behave like one.

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