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 November 2007

NPA credibility? What credibility?

It has become fashionable to berate the South African media for its myriad of faults – especially around its reporting of the so called succession debate and the chances of Mr. Jacob Zuma becoming President. Much of this criticism is of course self serving and usually emanate from one of the “camps” who feel aggrieved by the reporting.

I am on record as having a rather low opinion of the South African media myself and have pointed out that far too many journalists are credulous and lazy and fail to think matters through. They often jump on a bandwagon regardless of the facts. One example was when newspapers all reported that the charging of Jacob Zuma was made more likely by the Constitutional Court rejection of the appeal by Schabir Shaik against his fraud and corruption conviction.

No matter that legally the outcome of the Shaik case had very little bearing onwhether a Zuma prosecution will be succesful or no, the journalists were all used to report on the matter as either a blow or a boost to Mr. Zuma’s fortunes. As that was the master narrative, they could not understand that the decision had no impact on a possible Zuma prosecution.

It was therefore predictable that the decisions of the SCA last week in which Mr. Zuma’s appeals against the search and seizures of several of his properties was rejected, led to a spate of articles about how this would hasten Zuma’s demise. For once, the legal facts more or less fitted the master narrative, so as it happens it was not far off to state that the SCA decisions was a blow for Mr. Zuma.

What struck me about the reporting, though, was that very little was made about the broader legal picture within which these decisions were made. Most journalists and commentators speculated about whether Zuma would be charged before or after the Polokwane conference and based their arguments on whether charging Mr. Zuma now or later would embolden his bid for the Presidency or hamper it.

The discussion was based on the assumption that the NPA would also make a decision based on these considerations. Of course, if the NPA were fulfilling its constitutional mandate to act without fear favour or prejudice, such considerations should not and could not play any role in any decision on whether to charge Mr. Zuma or not.

It is a sad reflection on our democracy and the degree to which our Prosecuting Authority has become enmeshed in the politics of succession, that the lazy journalists had all just assumed that these criteria would be what drove a decision by the acting head of the NPA. (I am not saying Mokotedi Mpshe, that bright spark currently warming Vusi Pikoli’s chair would not take these succession factors into account – but I am saying he is constitutionally forbidden from doing so.)

By implication it is now taken for granted by almost all journalists that the pro-Zuma camp was correct to argue that the case against him has everything to do with the succesion race and very little to do with the fact that he took more than a million Rand from a convicted fraudster and then did special favours for this fraudster.

Maybe one should not be too harsh on the journalists and the commentators. The suspension of Vusi Pikoli, the head of the Prosecuting Authority (remember him?), by President Thabo Mbeki in circumstances that could only suggest political interference by the President in prosecuting decisions and the revelation by Andrew Feinstein that President Mbeki initially prevented the prosecution of Zuma alongside Shaik, has poisoned the atmosphere to such a degree that it is difficult to remember that the NPA is supposed to make individual prosecuting decisions not based on considerations around the politics of the succession.

Of course, decisions by the NPA to prosecute high powered people have political consequences and the NPA head should manage these consequences as best he can, but he should never make decisions based on whether such a decision is going to advance or inhibit the political ambitions of one person – even if (no especially if) that person is the President of the country.

The fact that most people have forgotten this basic principle and it is now common cause that the NPA will make a decision on whether to charge Zuma or not based on succession politics, demonstrate to what extent President Mbeki has has managed to destroy the credibility of one of our most important constitutional institutions.

All I can hope for is that Vusi Pikoli does not capitulate in the name of the party and that he fight the suspension and possible removal from office to the bitter end. That is the only way in which the NPA’s credibility could be restored in any way.

Meanwhile I am awaiting the decision of Mokotedi Mpshe on whether to charge Mr Zuma or not, confident that the decision will not be discussed with the President beforehand, will have nothing to do with the succession politics, and will have everything to do with legal considerations. I am, of course, also confident that Father Christmas lives in the North Pole and will bring me a new Mini Cooper for Christmas….

2015 Constitutionally Speaking | website created by Idea in a Forest