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
16 January 2008

President Pinocchio

President Thabo Mbeki and his advisers are having a difficult time explaining away an obvious wopper he has been peddling for a while now and repeated to reporters on Saturday when the President announced that Police Commissioner Jackie Selebi was stepping aside.

On Saturday President Mbeki said:

I have said this before, many times, that if there was anybody who has information that shows that National Commissioner Selebi has done wrong things, I would act on it. Nobody did, nobody came to me.

But in court papers Selebi filed last week, a letter written to President Mbeki by suspended National Director of Public Prosecutions Vusi Pikoli showed that Mbeki had, in May 2007, been informed about the allegations against Selebi.

Presidential advisor, Mojanku Gumbi, tried to explain away this obvious lie by saying that the letter of May 2007 merely contained allegations. Said Gumbi:

But throughout the process, while the prosecutors are investigating, we all wait until they tell has that they think they have a case to pursue against somebody and that is the only time when we say ‘OK, if you think you have a case to pursue, that is it, please pursue,’ and the president acts against the person.

There are at least two very obvious problems with this explanation. First, allegations against anyone of criminal wrongdoing remain allegations until such time as a court of law finds beyond reasonable doubt that the allegations are true. The question is how serious should allegations be taken before such a finding is made by a court of law. Surely they should be taken rather seriously if the person constitutionally entrusted with making decisions about criminal prosecutions take them very seriously?

In May 2007 the head of the National Prosecuting Authority thought these allegations were serious enough to ask that a warrant be issued to search Mr Selebi’s premises and to ask for the President’s help in getting co-operation from Mr Selebi – yet the President at the time claimed that he had no information about wrongdoing by Selebi.

This was an obvious lie as he did have this information, and from an extremely credible source – the head of the NPA – but because the information did not square with what he wanted to hear or needed to be true, he told the media that he did not have such information.

He was either telling bare faced lies, or he was in deep denial. Either way, him and his advisers cannot now say there was no evidence back then when there was enough evidence for the head of the NPA to want to act against the police chief.

Second, and more decisively, in Sepetmber 2007 the head of the NPA actually felt that the allegations were serious enough to ask for the issueing of a warrant of arrest for Mr Selebi and convinced a magistrate to issue such a warrant. Pikoli therefore thought in September 2007 that “there was a case to pursue” against Selebi, proceeded to institute such a case, a magistrate agreed there was sufficient evidence to issue such a warrant, and Pikoli informed the government accordingly.

Then the President suspended Pikoli and his spokesperson hinted that there was no case against Selebi and that it was part of a dark plot by sinister apartheid forces to discredit the Police and the government.

For the President and Ms Gumbi now to say that they could only act once it was clear the NPA thought it had “a case to pursue” and that this only happened on New Years eve, is thus such an obviously lie that it insults our intellegence to continue peddling it.

Surely convincing a magistrate to issue a warrant of arrest for the police chief (as Pikoli did in September 2007) shows rather decisively that the NPA thought it had  a “case to pursue” against the police commissioner and that it was in fact now pursueing that case? To pretend this never happened, is rather shocking in its boldness and arrogance.

The question is: why do the President and his advisers continue advancing this obvious lie? Do they just think we are all fools who will forget that a warrant was actually issued for Selebi’s arrest in September 2007? Are they so hubristic after ten years in power that they think they can change the facts by merely claiming them to be something different from what we all know them to be? Or are they incapable of admitting a mistake and are they therefore obliged to peddle these lies – all the time digging themselves deeper into a hole?

Whatever the answer is to this question, it is clear that President Mbeki and Ms Gumbi has no credibility left on this issue. Like Pinocchio, every time they talk about this issue their noses metaphorically will just grow longer and longer. The rest of us are by now embarrased by the long protruberances jotting from their faces – are they the only ones not capable of seeing this? 

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