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
4 April 2011

Mduli’s conspiracy claim vindicates ConCourt

The front page of The New Age (if you did not know, it’s a newspaper bankrolled by President Jacob Zuma’s good friends – the Gupta family) contains a story that would have sent shockwaves through the media and the political establishment a few years ago. Perhaps because the story appeared in The New Age (which is not widely read, either because it’s lay-out is ugly and cheap-looking, because it usually contains a high number of bone-grindingly boring stories, or because it has not built up much credibility amongst those people who buy newspapers carrying “serious news”) it has not yet – as far as I know – been commented upon or taken up by other publications.

The story “reveals” that supporters of President Jacob Zuma are being “undermined” to weaken them before the ANC’s next elective conference – all apparently part of a move to oust Zuma at said conference. I quote (no link provided on The New Age site):

Beleaguered crime-intelligence boss Gen Richard Mduli discovered – before his arrest – a “plot” by certain elements within the Hawks to discredit politicians who are close to President Jacob Zuma….The New Age has learnt that the targeted pro-Zuma supporters in the ANC and its alliance partners include among others SA Communist Party secretary-general and Higher Education Minister Blade Nzimande, ANC secretary-general Gwede Mantashe, MKMVA chairperson Kebby Maphatsoe and the military veteran’s secretary-general, Ayanda Dlodlo…. [A crime intelligence source] said this included the leaking of damaging information by certain members of the Hawks and the police to the media that they were corrupt and benefited from lucrative deals because of their open support for Zuma.

Of course, the story sounds rather familiar. Last time Jacob Zuma and some of his supporters were targeted by a corruption-fighting unit (the now defunct Scorpions), the allegations of political conspiracies also did the rounds. Many people believed it too, perhaps because even some people who were not great supporters of Jacob Zuma suspected that then President Thabo Mbeki could not be trusted and that he and his allies might very well have been using the Scorpions to get rid of Zuma so that Mbeki could become President of the ANC for life. (A suspicion given some credence, one might add, by the release of edited versions of taped phone conversations which suggested that Mbeki allies wanted to time the arrest of Zuma with one eye on the Polokwane election.)

This time around the claims of a political conspiracy might be slightly less plausible as the head of the Hawks was appointed by President Jacob Zuma himself. Moreover, the head of the Hawks reports to “General” Bheki Cele, who was himself appointed to his post by President Zuma. Claiming that these two gentlemen are now plotting to assist with the defeat of President Zuma at the next ANC conference or that they might be turning a blind eye to such plots, seem rather implausible – and not only because the allegations were published in The New Age.

Nevertheless, questions will be asked by the more credulous among us – even when the allegations of Mduli seem less than plausible – exactly because those involved in Mduli’s case is supposed to be – like Ceasar’s wife – beyond reproach (which they can never be, given the political nature of the leadership of the Hawks, the crime intelligence and of the Police Service).

Mduli was, of course, not arrested for corruption but for allegedly being involved in a murder. But the Hawks were involved in this case as it is apparently a “priority crime” to murder one’s former lover’s boyfriend. Regardless of whether this case deals with corruption or not, it does illustrate the problem that can be created when a police unit is not perceived to be free from possible political interference.

The story therefore underlines just how correct the Glenister judgment of the Constitutional Court was and how important it is for the fight against corruption that South Africa gets a truly independent corruption-fighting body free from political interference and free from any perception that the body is open to political interference. It also illustrates why the recent practice of appointing political party hacks like Selebi and Cele as Police Commissioner is a very bad idea. Politicising the police leadership serves as an open invitation to crooks, scoundrels, charlatans and the odd innocent person to try and discredit the police because of the alleged political agenda’s of the police leadership.

We know that whenever the word gets out that individuals (whether they are politicians, businessmen or full time crooks) are being investigated for corruption or whenever anybody is arrested after being implicated in corruption, the first thing the person and all his supporters inside and outside the ANC Youth League will invariably say (whether he or she is as guilty as Jackie Selebi and Schabir Shaik or as innocent as a heavenly angel) is that he or she is being persecuted and that the investigation or arrest is all part of a political plot by enemies of the ANC/the State/the National Democratic Revolution/the Truth/the Leader/God/Father Christmas. (I slipped in that last option just to check whether you, my dear readers, are still awake.)

This has become a political cliché and, quite frankly, a bit of a joke: as if every crook and charlatan has gone to the same public relations school and has been told that when arrested they have to allege a political conspiracy. Of course, some of us are now so cynical about these laughably stupid claims of political conspiracies that we might not be able to spot the few individuals who might be innocent (or might be less guilty than claimed). Who knows, as we speak some people might indeed be targeted for investigation and arrest as part of a political conspiracy and we might not know this because we would now never believe anyone making that claim.

Although most of us might be cynical about such claims and might laugh at the absurdity of it all (having heard it all before), quite a few South Africans (and a few journalists at The New Age, it seems) are prone to believe such allegations. The reason why anyone would still believe this kind of allegation is because those who investigate corruption and those who arrest people for allegedly being corrupt are not part of an independent body completely free from political influence. They are appointed by politicians and report to politicians and – let’s face it – when politicians are involved in such matters it is entirely plausible to believe that plots and backstabbing is to blame for the arrest of a person rather than to believe that the person’s own greed and corrupt activities led to his or her demise.

Even when individual members of the police or the Hawks act absolutely according to the book, the perception amongst some people will remain that political appointed corruption busters and police leaders, who are accountable to politicians and whose brief is determined by politicians (as is the case with the Hawks), can never be independent.  This leaves open the door for people like Mduli to claim that he is a victim of a political conspiracy to unseat the President of the ANC at its next elective conference.

If Mduli had been investigated and arrested by a truly independent body or by police officers led not by a politician who happens to be a close friend of the President, but by a professional and a career police officer, it would have been far more difficult for him to make allegations of a political plot. And maybe then even the journalists at The New Age might have thought twice before publishing these allegations of a conspiracy as if this was proven fact.

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