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
31 March 2008

On Stalinism, accountability, responsiveness and openness

The President of South Africa is not the managing director of a company. Nor is he the coach of an international sports team. Nor is he George W Bush, for that matter. He is the head of state of South Africa, a country founded, according to section 1 of the Constitution, on, inter alia, the values of a “multi-party system of democratic government” established “to ensure accountability, responsiveness and openness”.

It is therefore fundamentally misplaced for people to defend President Thabo Mbeki’s decision not to release the Khampepe Commission of enquiry’s report on the mandate and location of the Scorpions at this time by arguing that he is playing a clever political game and that he will release the report at the opportune time.

The fact that the President and his advisers are playing political games with a report that should be in the public domain, indeed a report that in terms of section 1 and 32 of the Constitution we have a right to read, just demonstrates how fundamentally he and his advisers have failed to embrace some of the democratic values embodied in our Constitution.

As the Constitutional Court said in the Doctors for Life case, the democratic government spoken about in the founding section of the Constitution includes aspects not only of representative democracy but also of participatory democracy. And for us ordinary citizens to participate in the decisions affecting our lives – including decisions about the disbanding of the Scorpions – we need and have a right to all the information that the politicians had when they formulated their proposals and plans.

The President does not have a choice to decide on the time and the place when he strategically will reveal just enough information to get us to agree with him. He has a Constitutional and ordinary legal duty to be open and transparent and to give us all the information we need to make up our own minds on whether he is acting like a fool or whether his proposals are clever or not.

One of the reasons President Mbeki was defeated at Polokwane was exactly because he never really understood or believed in this aspect of democracy. Too steeped in the Stalinist tendencies that served the ANC well in exile but is now in conflict with the values of the Constitution and the values fostered by insiles in the days of the United Democratic Front, he cannot help being secretive because he does not trust the people to be wise and clever like he think he is.

This is an insult to all of us who are supposed to take part in our democracy – because it is not the President’s democracy or the ANC’s democracy, it is the democracy of the people who has the right not only to vote for the party of its choice, but to take part noisily and in an informed way in the debates about how we want to be ruled.

But the President is in effect again saying (like he did on Jackie Selebi) “trust me”, I will release this report when it is politically strategic and for me to do so and you – poor, uninformed voting sods that you are – will see how wise and clever I have been. You have no say in this because you do not know what you are talking about and you do not really deserve such a clever President as myself in any case: You must just shut up and be ruled.

When I hear our President and his advisers talking like this I am once again glad that he was ousted at Polokwane – no matter how flawed his successor might be – because it reminds me that he is yet to come to grips with one of the major tenets of our democracy.

So, no, Mr President, we do not want to wait for the Khampepe Commission Report until you think we can be trusted with it. We want that report NOW so that we can study it and see what it said and we can empower ourselves and take part in the debates around the Scorpions in an informed manner.

So for once I am rooting for the Democratic Alliance who said they will lodge an internal appeal against the decision of the Presidency not to release the Report. When that fails they will probably lodge a case in the High Court. Problem is, by that stage it might already be too late for us ordinary people because the Scorpions would long have bitten the dust.

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