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
1 September 2009

Not lazy, just callous and disrespectful of the Constitution

When Prof Jonathan Jansen called Basic Education, Minister Angie Motshekga, a “lazy and incompetent minister”, that great charmer and former spin-doctor of the ANC, Jessie Duarte, was not amused. Duarte, who during her time as spin-doctor developed the brilliant media strategy of insulting and attacking any journalist who dared to ask her a question, at the time stated that this (admittedly grave) insult was “reminiscent of the utterances made by the Apartheid ideologues of the old order”.

I am therefore in a bit of a pickle.

Although Duarte has now been “redeployed”, I really don’t want her to rise from the ashes and call me a racist. Duarte, who some years ago was forced to quit as Gauteng’s minister for safety and security after a commission of inquiry found there was a “strong suspicion” she had covered up a car accident while driving without a license, would surely not like it if I expressed the opinion that the former Minister of Justice (who, like Judge Motata, really likes drinking tea), any of her officials or the members of Parliament were lazy and incompetent.

But how else does one explain the fact that the the Minister of Justice and Constitutional Development, the relevant officials, and Parliament had failed to comply with a previous order of the Constitutional Court handed down in June 2008 ordering it to pass legislation within 12 months that would allow for the effective enforcement of court orders for judgment debt against the state? In that case the majority of judges of the Constitutional Court declared invalid section 3 of the State Liability Act because it did not provide for the satisfaction of judgment debt against the state.

Now 14 months later, nothing has been done. No, that is a bit unfair to the Ministry and its officials. Some bright spark somewhere in the Ministry did get the idea a few weeks ago that this problem could be fixed by amending the Constitution to prevent the courts from testing an identical provision from that declared invalid by the Constitutional Court against the provisions of the Bill of Rights. That industrious official (note, please Jessie, I am not saying anyone is lazy or incompetent!) did not realize that such an amendment would undermine the supremacy of the Constitution and would amount to an amendment of section 1 of the Constitution for which a 75% majority was required. (See the seminar room elsewhere on this Blog for my submission to Parliament pointing this out.)

But no law has yet been passed as ordered by the Constitutional Court, so the Ministry had to approach the Constitutional Court again to request an extension and yesterday that court granted the extension, giving the Minister two more years to fix the mess it had failed to fix in the previous fourteen months. The case demonstrates the difficulties courts can find themselves in when their orders are ignored. Given the fact that I would not dream of calling anyone responsible for this mess lazy or incompetent, the case also casts doubt on the Ministry’s commitment to constitutional governance and respect for court orders. Maybe the officials and the Minister are just contemptuous of our Constitution and the highest court who has to apply it?

Because of the manner in which the original order was formulated, the Constitutional Court had little choice but to grant the extension. Unlike the Ministry and its officials, the Constitutional Court is a conscientious body who takes its duty to act responsibly and reasonably quite serious. If the Court had refused the extension, any state assets – including medical equipment and computers – could have been attached for outstanding judgment debts and this potentially would have caused chaos.

(Maybe Jessie is not reading this after all, so I will be so bold as to add that one could also have said the attachment of some state assets has the potential to cause more chaos than the chaos already well known to us long suffering South Africans who, say, make use of the services of the Department of Home Affairs.)

In order to prevent the recurrence of this deeply troubling disregard for an order of the Constitutional Court, the Court yesterday gave parties until 15 September to give reasons why an interim order should not be made. This order would allow for the attachment of state assets for the satisfaction of judgment debt if certain requirements are met.

The order would also allow the state to prove that the court order for the attachment of state assets would not be in the interests of justice and good governance and a court could then set such an order aside. This would prevent the attachment of state assets that might be essential for the smooth working of government. If this order is confirmed, it would put in place a system that would expose the state to a considerable degree of risk, which means the Ministry would have an incentive to fix the problem that it was too, well, not lazy, exactly, but perhaps too callous to fix over the past fourteen months.

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