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 2009

Niehaus, loyalty and the Rule of Law

It is a difficult call: when one’s friend finds himself in a tight spot – say because he has defrauded the government or is exposed as a serial liar – should one support him or condemn him? There is something laudable about friends sticking together, after all, and when a mother of a convicted murderer stands outside the court and refuses to condemn her son, I personally feel empathy for that mother.

So when it transpired that Carl Niehaus defrauded the Gauteng government, that he is not only an ANC spin doctor trying to convince us all that Jacob Zuma is the victim of a dark conspiracy, but also a man who lied about his own sisters death in order to score a business class ticket to London for his wife, I was not surprised that some in the ANC leadership would feel some sympathy for the man.

After all, he spent many years in jail for the cause and despite the fact that he is a man who has no morals and felt it was better to lie and crook than to scale down his opulent lifestyle, as a friend it is laudable that members of the ANC feel that they have to support him. Ok, some of us might wonder what’s wrong with driving a Chicco and living in a two bedroom apartment, rather than swish about in a Porsche and live in a grotesquely kitch tuscan villa. But we might have some understanding of the loyalties that animate the deep bonds forged in struggle.

Yet, that said, I find it ethically depraved and morally reprehensible that the ANC is now saying that they will not only support Neihaus personally in his hour of need, but that they will “redeploy” him in the movement so that he can mend his ways. I find it deplorable that his boss, Gauteng Premier Paul Mashatile, failed to report his fraud to the police. I find it deplorable that there seems to be one set of rules for ordinary people and another set of rules for ANC cadres.

What does it say about the ANC that even after their spin doctor had admitted to the most callous and selfish criminality, they are not prepared as a movement to fire him, but feels it is appropriate that he be deployed? What kind of job can this man ever do again with any kind of credibility? How can the ANC think its ok for such a morally depraved man to work for them?

It is really fine to support him personally, but as a political party who is supposed to have zero tolerance for corruption, the decision by the ANC to protect Neihaus suggests that is either so arrogant or so morally depraved itself that it cannot see the spectacular double standard it is using here.

What happened to the Rule of Law – the principle that all are equal before the law? The ANC is saying that if one is an ANC cadre the ANC will protect you no matter what. The ANC will look after you even if you are a liar and a cheat, even when you lie about having cancer and lie to your creditors and lie about, well, who knows what else? One now wonders whether he even believed anything he had said in defense of Zuma or if that was also just a tissue of lies. The ANC will talk about zero tolerance of corruption and its Ministers will tell the police to shoot the bastard criminals – as long as they are not ANC members.

This move shows a spectacular disrespect for the law and also for the voters and makes a mockery of statements by ANC leaders that it is opposed to corruption and dishonesty.

If the ANC had any moral compass left they would have expelled this man from the party immediately. This does not mean they could not have supported him personally as a friend – by sending him a note to offer condolences or by bringing him some food to Pollsmoor Prison – but keeping him on and redploying him suggest the ANC believes its own members are above the law and that they must be held to a different standard than us mere mortals.

The fact that Gwede Mantashe cannot or will not see this really should worry us all. Where are the moral leaders in the ANC? or does loyalty trump everything else – even common sense, decency and respect for the truth?

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