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 May 2011

SAHRC finding against Moqhaka Municipality on open toilets

SOUTH AFRICAN HUMAN RIGHTS COMMISSION

File Ref No: FS/2010/0231

In the matter between: Van Onselen, Gareth Complainant

and

Moqhaka Local Municipality Respondent

FINDING

1. Findings

1.1. Based on the investigation conducted by the Commission and the analysis of the constitutional rights, court judgments and applicable legislation, the Commission finds that:

1.1.1. The Respondent failed to adequately conceptualise, plan and implement its project which resulted in the residents being forced to use unenclosed toilets;

1.1.2. The Respondent’s explanation that it lacked adequate resources was not justified and is therefore unacceptable.

1.1.3. The measures provided by the Respondent do not meet the standard of reasonableness in terms of the progressive realisation of the right to water and sanitation services.

1.1.4. The complaint of violations to the rights of human dignity, privacy, and a clean environment are upheld; and

1.1.5. That provincial and national government have not adequately monitored the work of the Respondent or intervened in respect of the legislative and Constitutional obligations.

2. Recommendations

2.1. In terms of the preamble to the Human Rights Commission Act, the Commission is entitled to “make recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of progressive measures for the promotion of fundamental rights within the framework of the law and the Constitution.”

2.2. The Commission recommends accordingly that:

2.2.1. The Respondent must proceed with urgency to enclose all toilets in the area that are required to enable people to have their basic sanitation needs met.

2.2.2. The Commission requires the Respondent to furnish it with a progress report at least every six months in respect of the progressive realisation of the right to water and sanitation services in the Township.

2.2.3. The report to the Commission must demonstrate the following:

2.2.3.1. clear implementation and budgetary plans;

2.2.3.2. the manner in which it has identified and responded to the rights of vulnerable groups like women, children and people with disabilities in the identified community;

2.2.3.3. mechanisms it has put in place to ensure it remains transparent and responsive in its project planning and implementation; and

2.2.3.4. the framework through which meaningful and ongoing consultation with the community will be undertaken.

2.2.4. The provincial and national departments are required to provide a report to the Commission within one month hereof indicating the steps being taken.

2.2.5. The Ministry of Monitoring and Evaluation must provide a report to the Commission on the quality of sanitation services delivered by local government in the country.

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