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 June 2011

On the World Cup and our Constitution

It is exactly one year ago that I bought my first Vuvuzela at my local Spar and discovered what a beautiful racket I could make with that piece of plastic, donned my Bafana Bafana shirt and joined friends in the city to watch our team take on Mexico in the opening game of the Soccer World Cup. That was the day Simphiwe Tshabalala scored the glorious opening goal of the World Cup and South Africa suddenly turned into the country we all wished we had lived in all our lives.

Almost all the professional whiners – of which our nation seems to have more than its fair share – fell silent while almost all of us marveled at our ability to put on the show of our lives. Reports of corruption and nepotism disappeared from the front pages of our newspapers, politicians mostly refrained from making embarrassing statements and many white people who had been hiding behind the high walls of their security complexes took public transport for the first time in their lives and discovered that most of their fellow South Africans of all races are actually pretty decent people just trying to live lives of dignity and respect.

To me there are some interesting parallels between South Africa’s hosting of the World Cup and the drafting of our Constitution. In both cases there were many naysayers who believed it could not be done or that it would be done badly. In both cases there were difficult periods in which it seemed unlikely that we would succeed. Yet, in both cases we produced something world class, yet truly South African – despite the compromises we were forced to make. Compromises, I might add, which we had to make with unsavoury characters like that old authoritarian Sepp Blatter (in the former case) and with members of the old Nationalist Party (in the latter case) in order to get to the point where we could be given a chance to prove ourselves.

When people complain about our Constitution and say that it is not a document that deals with our South African reality, that it affords “criminals” too many rights, that it is too progressive because it protects the rights of religious and sexual minorities, that it makes governing the country too difficult or that it places too much power in the hands of unelected judges or an indirectly elected (and, at present, a rather flawed) President, I think they miss the point.

First, they ignore the fact that the Constitution is not only a practical legal document but also a symbolic memorial to our collective hopes and dreams. Although it is not a perfect document (just like the World Cup was not perfect – after all, we lost to Uruguay and never made it to the second round of the competition), it embodies a set of fundamental and essential values which must guide the actions of present and future governments. The inclusion in our Constitution of these values – openness, transparency, freedom and respect for the human dignity of all South Africans – signals a complete break with the apartheid past. It continues to remind us how we wish to live, what kind of human beings we want to be and what kind of government we believe we deserve, even if individual politicians and our major political parties do not always live up to the promise of our founding document.

Second, the Constitution is a living document which acquires meaning through interpretation and application. Although it contains fundamental basic rules that bind those who govern the country, it is left to our courts to decide how these rules should apply to specific situations. The success of the document should not be measured merely by asking whether the current government is always following the letter and spirit of the Constitution or with reference to individual court judgments with which we might disagree. When naysayers argue that our Constitution might already have failed, I like to quote Mao Tse Tung, who when asked what he thought of the French revolution stated that: “It’s far too early to say.”

(Similarly, while we are currently sitting with the financial hangover left by our hosting of the World Cup, I would argue that it is far too early to say whether the long term benefits of hosting the Cup would have made the whole exercise worthwhile.)

Third, the Constitution has already produced enumerable benefits to all South Africans and have changed the way we think about ourselves and the society we live in. Just as the World Cup produced new stadiums, new roads and more visible policing and the Bulls playing rugby in Soweto, so our Constitution has produced some benefits for all of us – even if these benefits are not always easy to identify.

Without the Constitution, gay men and lesbians would probably not have enjoyed the full legal protection we now enjoy; we would probably not have enjoyed the degree of media freedom and freedom of expression that we now do and we would have been less certain that attempts by the ANC government to pass the draconian Secrecy Bill will eventually flounder in Parliament or in our courts; the Western Cape government would probably not have lost the legal battle regarding the provision of open toilets to the residents of Makhaza and the inner city residents of Johannesburg would have been far more vulnerable to eviction by the Johannesburg City Council.

While many South Africans still struggle to accept the notion that those who they disagree with or those who do not look like them enjoy the same legal rights as they themselves do, almost all of us now think and talk in terms of our rights and are quick to demand our rights when we believe our rights are threatened or infringed. Indeed, we have become a society of rights-holders and we have embraced the notion that no-one has the right to infringe on our rights. In this sense, we have become empowered to be active citizens and as active citizens we can begin to see glimmers of the dignified lives we wish to live and know we deserve.

Lastly, the Constitution is only as good as those who are entrusted to implement it and our collective commitment to ensure that they implement it well. Every citizen now has a voice and can – through civil society involvement, through engagement with political parties and institution, through struggle and protest – play a small part in ensuring that the Constitution works as well as we had hoped it would when we adopted it. Sometimes one individual can make a difference – as Public Protector Thuli Madonsela has shown. Sometimes the collective efforts of a community is required – as the people of Joe Slovo informal settlement has shown.

So, while there is much that is still wrong in our society (endemic corruption and unacceptable levels of crime, vast economic inequality, lingering racism and sexism and threats to media freedom and the Rule of Law, to name but a few) and while much work needs to be done to ensure that the promise we made to ourselves as a nation when we adopted the Constitution are actually realised, on this first anniversary of the start of the World Cup, I prefer to see the glass as half full. And one of the most important reasons for that half full glass is our Constitution.

Of course, when we cast our minds back to the heady days of the World Cup and we ask whether it was all worth it, it would be easy to conclude that it was not – given the many other problems in our society that need to be addressed, given the financial cost of hosting the event and given our embarrassment about having been duped by the authoritarian Sepp Blatter into believing that he was a kindly Father Christmas. But maybe – as is the case with our Constitution – we should also try to remember the good that has come of it and keep in mind that it is indeed far too early to tell whether it was all for the better or not.

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