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
27 October 2010

Premier Helen Zille trying to change the subject on the Makhaza/Janet Love scandal

ANC cadre deployment crippling democracy

When allegations of Arms Deal corruption first surfaced, a Joint Investigating Team (JIT) was set up by President Mbeki to investigate. It was significant that the President ignored the recommendation of Parliament’s Standing Committee on Public Accounts (SCOPA) to include the Special Investigating Unit (SIU), headed by an independent Judge, as part of the investigating team.

The JIT exonerated government of any wrongdoing, leading to widespread allegations that the report was a whitewash. These suspicions were confirmed when it emerged later that crucial facts and findings were edited out of the final report after the Department of Defence and the Office of the President had directly intervened. Most significantly, whereas the draft JIT report concluded that there were “fundamental flaws” in the procurement process, the final sanitised version concluded:

“No evidence was found of any improper or unlawful conduct by the Government?There are therefore no grounds to suggest that the Government’s contracting position is flawed.”

Somewhere along the line, loyal cadres could be counted on to cave in to political pressure to “put the party’s interests first”. The same could not be said of Judge Willem Heath, which is why Mbeki excluded him from the investigating team in the first place.

Someone else who refused to yield to this pressure was ANC MP Andrew Feinstein, a member of SCOPA. When he insisted that Judge Heath be included in the Joint Investigating Team, he was demoted from his position as head of the ANC study group on SCOPA and instructed not to speak in the committee without permission. Feinstein eventually resigned from Parliament altogether in August 2001. The ANC deployed more pliant cadres to SCOPA to prevent further in-depth scrutiny of the Arms Deal.

With the lid firmly placed on SCOPA, things went quiet for a while on the Arms Deal front.

The matter resurfaced only when it became a tool in the ANC’s growing internal battle between Thabo Mbeki and Jacob Zuma. In 2003, the NDPP, Bulelani Ncguka, (an Mbeki appointee and ally) took the decision to prosecute Jacob Zuma’s “financial adviser” Schabir Shaik.

Shaik was found guilty of corruption, leading the trail directly to Jacob Zuma. The war was then on between the “deployed cadres” who supported different factions within the ANC.

This is the lens through which one must analyse the battle to prosecute Jacob Zuma, and his counter strategy to get off the hook. During this process Zuma himself made the point that, if he was selectively prosecuted, he would implicate others, and bring down the ANC’s whole pack of cards.

In the context of this raging battle, it was instructive to see what happened to “deployees” who refused to put the Party’s factional interests ahead of their constitutional responsibilities. The clearest example is Vusi Pikoli (who replaced Bulelani Ncguka as the National Director of Public Prosecutions). Pikoli managed to defy instructions from the leaders of both factions of the ANC as he sought to undertake his constitutional responsibility without fear or favour.

When Pikoli pressed charges against President Mbeki’s ally Jackie Selebi, Mbeki set up the Ginwala Commission to investigate whether Pikoli was fit and proper to hold office. Before Ginwala reported her findings, the winds of political change had blown through the ANC and President Mbeki had been replaced by acting President Kgalema Motlanthe. Although Ginwala found that Pikoli was actually fit and proper to hold office, Motlanthe seized on a technical aspect of her report and fired Pikoli anyway. Pikoli had, after all, decided to prosecute Jacob Zuma. It was equally essential for the Zuma faction of the ANC to stop Pikoli in his tracks. Pikoli’s successor Mokotedi Mpshe duly dropped charges against Zuma for reasons that defy rational analysis.

Until the truth is uncovered, the Arms Deal will remain a festering sore on our body politic. Not just because of the scale of the corruption involved, but because of the way that constitutional institutions were manipulated and politicised through cadre deployment, with profound and lasting implications. In fact, through cadre deployment, the ANC has fundamentally undermined our constitution without changing a single word of it.

Unfortunately there are still many people who do not get it.

This week a group of about 30 “lawyers and activists” sprang to the defence of Janet Love, who was recently “deployed” by the ANC from its National Executive Committee to the Human Rights Commission. This move was described by ANC Secretary General, Gwede Mantashe himself, as a “deployment” for “strategic” reasons.

I criticized this move, describing the deployment of various ANC “cadres” (including former MPs) as a threat to the independence of Chapter 9 Institutions including the Human Rights Commission.

The group of “lawyers and activists” singled out Janet Love for protection, arguing that she has a sterling record as a human rights lawyer and would never kowtow to the ANC.

That may be so, but it misses the point entirely.

Deployed cadres have a DUTY to promote the interests of the dominant faction in the ANC in whatever institution they are deployed to. If they do not, they are soon “re-deployed”. The practice of “cadre deployment” has destroyed public confidence in any institution staffed by people that the ANC itself describes as strategic “deployees”.

Perhaps the lawyers and activists might like to undertake a closer study of what happened to key people who once served on the Human Rights Commission (both staff and commissioners) who had the guts to stand up to the ANC. We have already begun this study, and the results are revealing, to say the least.

An isolated “cadre” here and there who believes her duty to the Constitution comes first, does not in any way lessen the threat the “cadre deployment” poses to our democracy.

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