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
29 January 2008

Patricia (de Lille, not Lewis) finally has a bright idea

When Patricia de Lille started the Independent Democrats (ID) before the 2004 election, I was quite excited about the emergence of an opposition party that would not rabidly criticise the ANC merely for the sake of being anti-ANC, while still standing up for what is right. Since then, Ms De Lille and her Party has not really fulfilled its promise and has often appeared at a loss about what its role and function should be.

I was therefore surprised to hear that the ID has announced that it would table a motion of no confidence in President Thabo Mbeki and his Cabinet in the National Assembly in terms of section 102(2) of the Constitution. The motion will be based on the failure of the ANC government to plan ahead to avert the power crisis we are now facing.

The ANC commands a two thirds majority in the National Assembly (NA) and if its party discipline holds, it will easily defeat the motion which requires the support of at least 201 of the 400 members of the NA to pass. It would therefore ordinarily be a waste of time for an opposition party in a one party dominant system like ours to institute a vote of no confidence in the Executive. It would in normal circumstances also be counter productive in political terms because it would make that party seem obstructionist and anti the (black) majority government in a way that could cost it votes.

But the situation at present is quite unique and the tabling of the motion of no confidence is, in my opinion, both a clever political move and a very important symbolic gesture.

It is politically clever because it comes at a time (post-Polokwane) when the ANC is a house divided. The newly resurgent ANC NEC seems rather serious about holding the government to account in Parliament. Matthews Phosa told members of the ANC NA caucus last week that they should be more active in their questioning of ministers while we all know that there are some in the NEC who would love to get rid of Thabo Mbeki and many of his Cabinet Ministers.

Tabling a motion of no confidence against the self-same Mbeki and his Ministers would require ANC members in the NA to defend them, but how enthusiastic will their defence be, given the fact that they would know that their jobs depend not on Mbeki and his Ministers but on the NEC? Thus the motion could highlight the divisions in the party and could present ANC MP’s with a very tricky situation to manouvre.

This would be made even worse for them by the fact that the negligence that led to the power cuts affect millions of South Africans of all races and classes and are really inexcusable. The issue would not be about a traditional white Democratic Alliance kind of gripe, but a real national emergency caused by an absurd lack of accountability and wisdom of the Cabinet. The MP’s will be forced to defend actions that are indefensible and will have to defend people that have fallen out of favour with the new party bosses. I am glad I am not an ANC MP called upon to do this.

But the tabling of the motion of no confidence – even if defeated as it surely will be – will send a strong symbolic signal that the Executive should not be unaccountable and will remind voters that some opposition parties actually fulfill an important role in trying to do so. It will at least symbolically assert the principle that Ministers who stuff up monumentally should be held accountable and even fired and will do so with reference to an issue that is not as racially divisive as other more “political” issues such as the Jackie Selebi or Manto Tshabalala-Msimang affairs. All South Africans who depend on Eskom have been affected by power cuts and are upset about this balls up. The ID would get good media coverage out of this as well and the ANC will be severely embarrassed.

Of course, intriguingly, the ID could also choose to rely on section 102(1) of the Constitution and table a motion of no confidence in the Cabinet but not in the President. This would place pro-Zuma ANC MP’s in an even more difficult position because they would have the chance to send a strong signal to the President that his days of having a free pass is over and would be able to force him to reshuffle his Cabinet.

In the unlikely event of this happening (or of the ANC tabling an amendment to this effect) and in the even more unlikely event that such a motion passes with the requisite 201 votes, the President would be forced to reconstitute his cabinet – presumably without those Ministers responsible for this stuff up. It would be bey-bey Alec Erwin (kicked out of the cabinet through “human instrumentality”), but also bey-bey Pumzile Mlhambo Ncguka. That would open the door for the appointment of Mr Kgalema Mothlante as Deputy President and a reshuffling of the cabinet to accommodate more ANC NEC members.

All this is of course wild speculation, but I am merely setting out the various possibilities. To me it seems like a very clever move on the part of the ID and one that would shake the ANC and remind voters of the incompetence of some of its Ministers. Most likely MP’s would be instructed to rally behind the executive but having suffered through the power crisis themselves, they will do so without enthusiasm. What an interesting year 2008 is going to be.

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