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
13 November 2006

Some Zuma-Shaik questions answered

At the weekend Judge Squires said he has never used the words “generally corrupt” to describe the relationship between Shaik and Jacob Zuma. However, the SCA’s five judges has ascribed these words to him in their decision to uphold Shaik’s sentence. Have the judges made a mistake?

The phrase does not appear in Judge Squires written judgment, so for the SCA to refer to it as if it does, is an embarrasing mistake on their part. They must be feeling a bit red-faced this morning.

If they have made a mistake, does it nullify their findings?

The mistake is a minor technical one and does not materially affect the reasoning on which they based their judgment. It decidedly does not nullify their findings because the findings is based on a wide range of facts which Judge Squires found to be true beyond reasonable doubt and which the SCA endorsed. No one has argued that these findings of fact, including findings about payments made to Mr Zuma by Shaik and favours done by Mr Zuma for Shaik, is incorrect.

Can Shaik ask for the his case to be reviewed again?

He can ask the Constitutional Court to hear an appeal on the basis that he did not receive a fair trial. Given the Constitutional Court‘s jurisprudence on this point, his chances of success are very small to non-existent. Judges are human and make mistakes all the time. Unless the mistake is material to the finding of guilt, it is not going to have any bearing on the outcome of a case or an appeal.

Cosatu general secretary Zwelinzima Vavi is calling for the resignation of the five judges. Is Vavi right?

Mr Vavi’s call is irresponsible and misguided and is an attempt to politicise the legal process. It undermines the independence of the judiciary and is regretable. If we require every judge who has ever made a small technical mistake like this to resign, we will not have any judges left in South Africa. The Constitution allows for the impeachment of a judge if he or she acted in a way that is grossly incompetent or if he or she is guilty of gross misconduct. This is clearly not such a case and for Mr Vavi to suggest that it is, is misleading.

What processes must be followed to remove a SCA judge?

A Judge can be removed on the above mentioned grounds or if he or she suffers from incapacity only after the Judicial Services Commission (JSC) has investigated the matter and found that one of these grounds existed. They must find – objectively speaking, in other words based not on political consideratiopns but on fact – that a judge was grossly incomptent or guilty of gross misconduct. After making such a finding, the JSC will refer the matter to the National Assembly who can then vote to impeach that judge with a supporting vote of at least two thirds of its members. No judge has ever been impeached in South Africa‘s history and these five judges will not be impeached either. This is because they have not been grossly negligent or have made themselves guilty of gross misconduct.

Does this new information make it more difficult for the National Prosecuting Authority to charge Zuma?

No, not at all. If Mr Zuma is charged, it will be a new case where much of the same evidence will be presented. Whether the phrase was used in the original judgment is neither here nor there. What the State will have to show is that Mr Zuma had the intention to be corrupt and that he did favours for Mr Shaik BECAUSE of the money paid to him. BUT I suspect if Mr Zuma is charged his lawyers will try to use this gaffe by the SCA to argue that there should be a permanent stay of prosecution because even judges have been poisoned by media arguments against Mr Zuma and it would therefore be impossible for him to receive a fair trial. Such an argument will be politically wise, playing into the victimhood posture of Mr Zuma, but I would be surprised if a court in South Africa agrees with it.

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