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
22 September 2007

Manto officials unwise (perhaps even stupid)

The Department of Health really knows how to generate bad publicity. Just as the controversy about the Minister alleged alcoholism and liver transplant queue jumping was dying down, its officials takes out a huge advert in daily papers to attack the judgment of the High Court in the case of Tshabalala-Msimang and Another v Makhanya and Others.

If only from a tactical perspective, publishing this advert was spectacularly unwise because it poured oil on a fire that was busy going out. It suggests a stubborn self-righteousness on the part of the Department officials. They really think by slagging off a judge in a paid for advert they will change the parameters of the debate around the Health Minister. Fat chance.

The advert is also problematic for at least two other reasons.

In a constitutional democracy like ours, there is a need to respect the principle of separation of powers. This means that the judiciary should not overstep the mark and intrude on the executive terrain. At the same time the executive should not be seen to interfere with the job of the judiciary.

When officials choose not to appeal a judgment of a lower court but then use tax payers money to criticise that judgment in the most disrespectful terms, stating like Sello Ramasala, the Head of Legal Services in the Department of Health, that the judgement was “a huge disappointment in terms of its internal contradictions and lack of coherence”, it suggest that the officials do not respect the boundary between the executive and the judiciary.

I am in favour of vigorous debate and criticism of court judgments as long as it does not impugn the dignity of an individual judge. It is therefore perfectly acceptable for lawyers and academics to argue that the judge in the Sunday Times case did not present a very good legal argument. But members of the executive have a duty to uphold the Constitution and the law and should not do anything seen as undermining respect for the law. This advert clearly does just that, suggesting that the judgement should not be respected.

Of course the advert is also problematic because the arguments put forward by the Head of Legal Services seem to fundamentally misunderstand the scope of the judgment. Mr Ramasala argues that the judge erred in finding that the Sunday Times had broken the law by possessing and quoting form the medical records – something prohibited by the National health Act – yet allowed the Sunday Times to continue commenting on the Minister’s health issues.

Mr Ramasala seems to think (or pretends to think?) that this means the judge allowed the Sunday Times to continue breaking the law from quoting from the Minister’s health records. But this is not what the judge did at all: he merely said that the Sunday Times could not be prevented from commenting on the unlawfully obtained records. This subtle but rather obvious difference eludes the learned lawyer from the Department of Health.

Of course this argument about the Minister’s health records is a red herring and has been used by the Department and the ANC to divert attention from the real issue which is whether the Minister is fit to continue in public office. Did she jump the queue to get a liver transplant, thereby abusing her power to save her own life and deprive another person from a life-saving operation? If she did jump the queue, she clearly is not fit even to sell second hand cars – let alone be the Minister of Health.

We also should focus on whether the Minister is actually doing her job. Given the difficult circumstances faced by our health care system, has the Minister’s stewardship made things better or has it been a disaster. Available evidence suggests the latter, but sadly this does not matter for those who can decide about the Minister’s fate.

Why would one worry about whether poor people are dying in our hospitals when one has an old friend to support and defend at all cost?

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