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
24 August 2009

Opposition parties shoot themselves in the foot

It is clear that President Jacob Zuma made a mistake when he announced his “nomination” of Justice Sandile Ngcobo as new Chief Justice before asking opposition parties for their opinion on the matter. He made things worse during the news conference following the announcement when he said – in response to a question – that he had “appointed” Ngcobo.

Section 174(3) clearly states that:

The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.

If this had happened when that other guy (what is his name again?) had still been President, the mistake would probably have been denied and a vigorous ad hominem attack would have been launched (either personally in his weekly internet letter or through henchmen like Essop’s Fables) against the opposition for complaining about the matter.

President Zuma did the right thing, admitting that he had made a mistake and writing a letter to the leaders of opposition parties and explaining that he used the word “appoint” in response to a question from the media. This, he wrote:

was inadvertent and does not change the fact that I had decided merely to nominate Justice Ngcobo to this position. It is common cause that you first nominate, and then open the consultative process. Our reading of the Constitutional provisions regarding the appointment process does not preclude the President from proposing a name. In fact, the practice as followed in the past has generally been for the President to ask the parties to state their views on a particular name.

Please rest assured that I have not appointed a new Chief Justice, nor have I taken a final decision on whom to appoint as the new Chief Justice, but reiterate my confidence in Justice Ngcobo as my preferred candidate. In making my final decision, I will of course take into account any views the leaders of political parties may express about him.

The President does not have to follow the advice of the opposition parties after consulting them on the Chief Justice, but he must (as his letter makes clear) keep an open mind and listen to the opposition parties before going right ahead and appointing anyone he pleases. The provision that he must appoint a Chief Justice “after consultation with” opposition parties is thus a fomalistic one and it would be surprising indeed if any president (from whatever party) ever changed his or her mind after consulting the opposition about such an appointment.

I am therefore surprised that the opposition parties have refused to accept President Zuma’s apology and admission that he made a mistake. It is not as if it will change the outcome of the process, and by harping on about this even after an apology and admission that a mistake was made, seem churlish and petty in the extreme.

There are far more important constitutional issues they should be concerned about and which they could rightly complain about: the probable unlawful dropping of charges against Zuma, the probable unlawful release of Schabir Shaik and the Constitutional 17th and 18th Amendment Bills which will erode the testing right of the courts are all important constitutional issues opposition parties could rightly get upset about.

Now they natter on like little children who received a slightly smaller piece of the birthday cake. They run the risk of being perceived as the boy who cried wolf once too often so that when they complain about something really important people will just say: well, there they go again complaining about everything.

They claim Zuma’s apology and admission is just an artificial move with no substance and that he should withdraw Ngcobo’s nomination. But style and substance often overlap and I, for one, would like to applaud our President for facing up to his mistake and taking steps to rectify it. The fact that opposition parties seem to find it impossible to display the same kind of magnanimity and humility as the President, says much about what is wrong with opposition politics in our country.

If one cannot distinguish between the important issues worth fighting about and the trivialities, one loses one’s credibility. This has clearly happened in this case and in the end Zuma, despite the mistake, emerges as the winner of this spat.

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