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 September 2008

Quo Vadis Ginwala Commission?

I see  Frene Ginwala, chairwoman of the inquiry into suspended national director of public prosecutions Vusi Pikoli’s fitness to hold office, yesterday said Judge Chris Nicholson’s judgment in African National Congress (ANC) president Jacob Zuma’s case “should not have any bearing” on her inquiry. She also said “the judgment should not have dealt with any aspect of my inquiry”.

Joel Netshitenzhe, the head of the Policy Unit in the Presidency, further argues this morning that as the Constitution requires the Minister of Justice to exercise final responsibility over the NPA, it means that judge Nicholson may have been wrong in saying there should have been no relationship between the Minister and the National Director of Public Prosecutions (NDPP). This, he argues, is because “if the judgment is taken to its logical conclusion, any interaction with the NPA on this or any other case by the executive, a political party or any other external authority cannot be entertained”.

These comments raise serious questions about the appropriate relationship between the Minister of Justice and the NDPP. While the executive obviously feels that the responsibility of the Minister requires her to interact quite vigorously with the NDPP, judge Nicholson seems to suggest that all the Minister can do is to approve the prosecution policy in consultation with the NDPP and to receive information and reports from the NDPP in accordance with the NPA Act.

On this score judge Nicholson merely reiterated what many of us have said in the past, namely that the Minister or the President has no right to interfere in the work done by the NDPP or in decisions of individual cases. They also have no right to be informed about individual decisions to prosecute or not to prosecute anyone or to be asked for permission to do so – as some suggested regarding the Jackie Selebi prosecution.

It is not clear whether Frene Ginwala or Joel Netshitenze – even now – understand this very basic point. Ms Ginwala is therefore wrong to suggest that the judgment has no bearing on her enquiry. To quote form it:

[I]t is clear that there is no attempt by Mr Pikoli to deal with the allegation of the blatant interference by the Minister and the fact that Mr Pikoli asserted his rights of independence. There is no refutation that the Selebi warrants were cancelled by Mr Mpshe after political interference and that Pikoli was suspended because he refused to do so. There is an admission that Pikoli reviewed only Selebi’s case, at the request of the Minister of Justice. The other admission relates to the fact that the President suspended Mr Pikoli as NDPP, stating that there had been an irretrievable breakdown in the working relationship between Mr Pikoli and the Minister. . .

The NDPP states unequivocally that the NDPP Mr Pikoli was suspended by the President because of a breakdown in his relationship with the Minister of Justice. There should be no relationship with the Minister of Justice – certainly insofar as his decisions to prosecute or not to prosecute anybody from the Commissioner of Police downwards. All that is clear from the Constitution, the NPA Act and the various prosecution policies, directives and codes of conduct. The suspension of the National Director was a most ominous move that struck at the core of a crucial State institution. Of importance to the applicant was the fact that Pikoli’s replacement, Mr Mpshe, who had to decide his fate, must have realized that to disobey the executive would in all probability ensure his own professional demise.

These extracts make it clear, really, that the President should never have suspended Mr Pikoli and that the suspension was probably illegal and/or unconstitutional. It might even be that the provisions in terms of which Pikoli was suspended are unconstitutional. It also makes it clear that one of the grounds for the suspension – a breakdown of the relationship between Pikoli and the Minister – was itself on its face based on a misconception of the  appropriate relationship between the executive and the NDPP.

Ginwala therefore seems wrong to suggest that the judgment has no bearing on her work. It seems to me the judgment has made a finding that Pikoli should never have been suspended and that the reasons given by the President for the suspension was in itself legally highly problematic and really demonstrated the unconstitutional and illegal interference in the work of the NDPP.

If one follows the logic of the judgment, the Ginwala Commission must surely be considered to be dead in the water. It was asked to investigate something that was constitutionally and legally none of its business and its very activities have been called into question by this judgment. One could even say that the judge has suggested its mere function – under the terms of reference given to it by the President – breached the Constitutional requirement safeguarding the independence of the NPA.

I wonder whether Ms Ginwala made the statement she made because she was on the point of reccommending the firing of Pikoli. If she was, or if she proceeds with such a reccommendation, she will have serious egg on her face. Come to think of it, a bit like the President.

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