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
8 December 2011

Lest we forget

This Saturday South Africa’s Constitution celebrates its fifteenth birthday. The Constitution was signed by then President Nelson Mandela on 10 December 1996 in Sharpeville. This was only one and a half years after the Constitutional Court started its work in terms of the interim Constitution.

By December 1996 that Court had already declared invalid the death penalty as well as action taken by then President Nelson Mandela. It had confirmed the constitutional validity of the amnesty provisions in the Truth and Reconciliation Commission Act and had sent the final Constitution back for redrafting because the draft had failed to conform to the 34 Constitutional Principles agreed to by negotiators before the 1994 election.

In short, by the time the final Constitution was signed by President Mandela 15 years ago, the Constitutional Court had demonstrated a clear intention to do its job properly by declaring invalid acts of Parliament and actions of the executive which did not conform to the provisions of the supreme Constitution. 

President Mandela might well have had reason to be miffed by the Constitutional Court because in the Executive Council of the Western Cape Legislature case it had found that the Parliament had unconstitutionally tried to delegate law making power to President Mandela and that his exercise of powers in terms of this delegation was thus unconstitutional. (This judgment was one of the judgments relied upon by those who challenged the unconstitutional attempts by President Jacob Zuma to extend the term of office of the former Chief Justice Sandile Ngcobo.)

President Mandela might therefore have expressed concerns about the “intrusion” of the Constitutional Court into the realm of “policy making” and might have warned that the work of the Constitutional Court will be assessed to determine whether that court is acting in a way that questions the power of the democratically elected legislature and the executive. Yet, in his speech at Sharpeville 15 years ago President Mandela did no such thing. Instead he said the following. 

Friends and compatriots;

By our presence here today, we solemnly honour the pledge we made to ourselves and to the world, that South Africa shall redeem herself and thereby widen the frontiers of human freedom.

As we close a chapter of exclusion and a chapter of heroic struggle, we reaffirm our determination to build a society of which each of us can be proud, as South Africans, as Africans, and as citizens of the world.

As your first democratically elected President I feel honoured and humbled by the responsibility of signing into law a text that embodies our nation`s highest aspirations.

In writing the words which today become South Africa’s fundamental law, our elected representatives have faithfully heard the voice of the people. To the Constitutional Assembly, and to its Chairperson and Deputy Chairperson who guided it through a complex and arduous process, we owe thanks.

We owe thanks to the Constitutional Court which has proved a true and fearless custodian of our constitutional agreements.

In centuries of struggle against racial domination, South Africans of all colours and backgrounds proclaimed freedom and justice as their unquenchable aspiration. They pledged loyalty to a country which belongs to all who live in it.

Those who sought their own freedom in the domination of others were doomed in time to ignominious failure.

Out of such experience was born the understanding that there could be no lasting peace, no lasting security, no prosperity in this land unless all enjoyed freedom and justice as equals.

Out of such experience was born the vision of a free South Africa, of a nation united in diversity and working together to build a better life for all.

Out of the many Sharpevilles which haunt our history was born the unshakeable determination that respect for human life, liberty and well-being must be enshrined as rights beyond the power of any force to diminish.

These principles were proclaimed wherever people resisted dispossession; defied unjust laws or protested against inequality. They were shared by all who hated oppression, from whomsoever it came and to whomsoever it was meted.

They guided the negotiations in which our nation turned its back on conflict and division.

They were affirmed by our people in all their millions in our country’s first democratic elections.

Now, at last, they are embodied in the highest law of our rainbow nation.

This we owe to many who suffered and sacrificed for justice and freedom.

Today we cross a critical threshold.

Let us now, drawing strength from the unity which we have forged, together grasp the opportunities and realise the vision enshrined in this constitution.

Let us give practical recognition to the injustices of the past, by building a future based on equality and social justice.

Let us nurture our national unity by recognising, with respect and joy, the languages, cultures and religions of South Africa in all their diversity.

Let tolerance for one another’s views create the peaceful conditions which give space for the best in all of us to find expression and to flourish.

Above all, let us work together in striving to banish homelessness; illiteracy; hunger and disease.

In all sectors of our society – workers and employers; government and civil society;
People of all religions; teachers and students; in our cities, towns and rural areas, from north to south and east to west – let us join hands for peace and prosperity.

In so doing we will redeem the faith which fired those whose blood drenched the soil of Sharpeville and elsewhere in our country and beyond.

Today we humbly pay tribute to them in a special way. This is a monument to their heroism.

Today, together as South Africans from all walks of life and from virtually every school of political thought, we reclaim the unity that the Vereeniging of nine decades ago sought to deny.

We give life to our nation`s prayer for freedom regained and continent reborn;

God bless South Africa;
Nkosi Sikelel’ i Afrika;
Morena boloka sechaba sa heso;
God seen Suid-Afrika.

I quote President Mandela’s full speech above to remind us all – on this fifteenth anniversary of our Constitution – of President Mandela’s commitment to the Constitution and the supremacy of the Constitution enforced by a fearless Constitutional Court. Lest we forget.

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