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
2 April 2008

On criticism, hysteria and empty rhetoric

Regular readers of this Blog would not be surprised to hear that I am a firm believer in vigorous debate, scathing criticism, and even the odd sarcastic attack on an opponent – be it a judge, politician, fellow academic or reader – one disagrees with.

I think it is healthy for our democracy that people debate and argue and shout and scream when they disagree with one another – as long as they are also prepared to listen and to engage with the arguments of opponents and are prepared to reconsider the correctness of their own positions when necessary.

In a constitutional democracy, no one should be above criticism. Whether one is a judge (or a Judge President!), the President of the country or the Archbishop, one should be confident enough to take criticism in one’s stride and to engage with even the most vigorous and shrill opponents. As long as we talk, we will not kill one another, which seems like a good reason why democracy is better than any other system so far invented.

Why then do I find recent attacks by the South African Communist Party (SACP) and the Young Communist League (YCL) on Unisa Vice Chancellor Barney Pityana rather problematic? On Monday Pityana launched a scathing attack on Mr Jacob Zuma and said:

To many of us, Jacob Zuma, popularly elected by the branch delegates at Polokwane in December 2007, remains a flawed character in his moral conduct; he has been indicted for serious crimes that involve corruption and dishonesty. So far he does not encourage confidence in his understanding of policy, appearing as he does in the short-term to be making policy pronouncements on the hoof depending on who he wishes to appease at any one moment,” Pityana said.

The YCL did not like this one bit and came out all guns blazing. Calling on Pityana to “desist from these unwarranted insults”, the YCL said it was regrettable that he had a “personal and political vendetta against the ANC president and he uses it in a malicious and opportunistic manner to settle cheap and factionalist political scores”. According to the Mail & Guardian the YCL said:

Pityana was not a “good political leader of note” and his “contribution to the liberation struggle is politically empty since in exile he was in the business of being a boarding academic and political demagogue tourist. The YCL believes that Pityana is nothing else, but a mere political mercenary seeking cheap political publicity. We urge the gutter vice-chancellor to desist from political gimmicks that insult and undermine the person of ANC president,” the YCL said.

Strong stuff from the youngsters! Normally I would just laugh at this kind of empty rhetoric and smile quietly about the colourful language used by the YCL to attack Prof Pityana, but this attack really upset me. It is not that I think Prof Pityana is above criticism. On the contrary, by all accounts he is a rather arrogant and pompous man and he might well deserve to be criticised.

The problem is that when one looks at the attack by the YCL, it is striking that it does not address in any substantive way the points made by Prof Pityana, and thus constitutes nothing more than an ad hominem attack on the Vice Chancellor. Instead of making strong, even shrill arguments for why Prof Pityana’s views on Mr Zuma are wrong, the YCL merely attacked the Vice Chancellor by calling him names.

And no wonder, because it is impossible to argue with the basic arguments put forward by Prof Pityana. Mr Zuma is clearly a deeply flawed man who took more than a million Rand from a convicted fraudster and then did favours for him. The Youth League cannot get around this basic point, so they have to resort to ad hominem attacks.

I fear that as we get closer to Mr Zuma’s court case and then to the next election, this kind of tactic will continue and will become more pronounced. Instead of engaging with arguments about whether Mr Zuma is fit to be President, some of his supporters will try and intimidate and shut up those who do not think Mr Zuma could be trusted to sell funeral policies at Pep Stores, let alone with being the Commander in Chief of South Africa.

This represents a threat to our democracy as the hysterical shouting does not enhance or deepen democracy but is actually an attempt to stifle democratic debate. The YCL thinks if it shouts and screams loudly enough and insults anyone who dares to question the ANC President, such questioning will stop and we will all fall in line and become praise singers to this obviously deeply flawed man.

That is why we should not stop criticising Mr. Zuma and why I applaud Prof Pityana for raising questions about his fitness for office. In a democracy, we have a right – no a duty – to subject our potential leaders to scrutiny and to ask whether they measure up. Those who think the criticism is unfair, should engage in a reasoned manner with the arguments presented and should try and refute them. They should not try and intimidate and shut up those who think that Mr Zuma might be a bit of a skelm.

The problem for the YCL, the SACP and Cosatu is that a convicted fraudster had already admitted that he had paid Mr Zuma millions of Rands and the highest court in the land has already found that Mr. Zuma did favours in return for this money. Whether he is guilty of a criminal offense is really beside the point,as far as I am concerned, because based on what has already been admitted and/or proven beyond reasonable doubt, Mr Zuma is not fit to hold any public office. Even the Zimbawean Electoral Commission might find it difficult to employ him.

Because these unpalatable facts cannot be gainsaid, the YCL and others will continue to shout and scream and attack those who point out the fact that the emperor has no clothes. Ordinary South Africans and those leaders not in Mr Zuma’s pocket should resist the temptation to keep quiet because down that road lies the land of Robert Mugabe and Zimbabwe.

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