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
10 September 2009

On public morality, law and death

As I was driving home yesterday, a guy in a big 4×4 – talking on his cellphone – rushed up behind me, flashed his lights, then gesticulated wildly. He nipped past me, narrowly missing the oncoming traffic, and agitatedly made a hand signal to express his profound displeasure at the fact that I was sticking to the speed limit. A few hundred meters further along the road, he suddenly slammed on his brakes and proceeded to park his expensive car (illegally) on the pavement, blocking the way of  potential pedestrians.

Just another day in suburban South Africa.

Then, this morning I read that drug stock-outs are continuing in the Free State with many HIV patients continuing to die while waiting to access anti-retrovirals while scores of patients who are already on treatment are defaulting as health facilities run out of drugs. Free State health department officials told a provincial health summit last month that patients should expect another moratorium on initiating new patients on ARVs from next month.

The provincial health summit heard that the Free State health department is R252-million short for its HIV/AIDS programme. The province has budgeted far too little for ARVs, as it has already spent R50-million – almost all this financial year’s budget for ARVs. As Health-e reports:

A state doctor in Bloemfontein who asked to remain anonymous confirmed that there were constant stock-outs and that some drug companies had suspended trading with the province over unpaid bills.

“I am extremely frustrated with the government people who seem to not grasp the importance of what they are doing, who cannot see that their lack of commitment to our people is leading to human rights abuses. There is simply no urgency and in the meantime patients are dying. It seems as if they have decided there are too many people who need help, that it is impossible for them to help everybody and they have made peace with it,” said the doctor….

The Free State provincial cabinet recently spent R11-million on new vehicles including a R1,3-million Mercedes Benz S600 for Premier Ace Magashule. Over R7-million was spent at the opening of the provincial legislature.

This all made me think again about the lack of respect for the law and the concomitant lack of respect for people’s dignity and right to life in South Africa. Why did that guy in his 4×4 act like such a jerk, endangering his own life and the lives of others? Why do some (but luckily not all) Free State politicians and health administrators seem so callously unconcerned about the plight of people living with HIV in that province?

Maybe the problem is not only related to a lack of respect for the law. After all, it was probably not illegal for the Free State government  to waste all that money on flashy cars and parties. Maybe these events point to a larger problem in our society relating to a general lack of respect for and a concern about others. (I know I am now sounding like a preacher, but, hey, if I was more religious and if I was not brought up in that dreadful Dutch Reformed Church, I might well have become one.)

What is needed, perhaps, is a broader discussion on public morality. By public morality I am not referring to the kind of narrow, conservative, and ultimately hypocritical and discredited understanding of morality, which relates to sexual mores. One cannot really take seriously people who complain about youngsters having access to condoms,  and being exposed to pornography, but would chase away homeless children begging on street corners.

No, I am talking about the shared values of our society which guide our attitudes and behaviour – regardless of what the law might say.  This relates to questions about what we believe is unacceptable behaviour and what we feel societal sanction should be for such unacceptable behaviour. It also relates to the way we  think about our responsibilities to those around us and to our society and country.

When our friends act like that jerk in his 4×4, do we reprimand them or cheer them on? When officials, politicians and friends are corrupt or callous, do we scorn them or reward them with jobs and contracts and invitations to parties? When others make racist statements or act contemptuously towards our fellow citizens or foreigners, do we remain quiet or speak up and challenge them? Do we see ourselves as inextricably part of a larger South African society with a responsibility towards others and the well-being of the country or do we believe that self-promotion and self-advancement should trump all else – regardless of the consequences for our country and its governance?

It is of course very difficult to establish the kind of public morality which will take our society forward – especially in a divided and traumatised society where race-, party-, ethnic- or family loyalties make it difficult for us to embrace a wider public morality in which respect for others and concern for the greater good trump narrow self-interest. And when we look around us and see how others who spurn the kind of public morality I speak of get ahead and prosper, the incentive to adopt a selfish everyone-for-himself-attitude becomes very strong.

Why would we work hard, embrace an ethic of care and of service to others, when that might well leave us scorned by the movers and shakers, overlooked for promotion, or even poor and destitute? It is thus a miracle that many people – although not a critical mass – of all races in both the public and private sector do embrace the kind of public morality I speak of.

Maybe we can start by talking about what we have in common and what we believe such a shared public morality should look like. Then we can proceed to become a little bit more brave and to speak up when others – even others who belong to the same race, party, ethnic group or family as ourselves – act in ways that do not conform to what we believe is right.

Just a thought.

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