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
18 December 2006

Something is happening but do we know what it is?

Am I just being optimistic or is something quite extraordinary happening in our political culture?

It seems to me that in the wake of President Thabo Mbeki’s sudden loss of the power to instil fear and obedience, suddenly so many sane voices are coming out of the woodwork to start a real democratic conversation about our political culture.

In the Business Day yesterday there was a hard hitting column by Xolela Mangcu – who seems to be getting better and better as a columnist since he stopped his academic names dropping – talking about the requirements for a good leader for South Africa.

Although he is careful to say it is nothing personal, the column amounts to a searing indictment of President Thabo Mbeki. But it also makes telling points about the ANC style of leadership and our democracy. Says Mangcu:

First, the leader must be a democrat at heart. He or she must understand the social utility of criticism. All leaders must understand and internalise what Cornel West said on his visit here last year: “No democracy can survive without that culture of criticism and dialogue and discussion and debate and contestation.”

As President Mbeki showed again in his online letter last Friday, for a politician he is extraordinarily thin skinned about criticism of any kind against himself or the ANC. In the past, we (including the media and the political commentators) were all a bit scared of his wrath. Now he spits fire and we just metaphorically role our eyes.

Really, most of the intelligentsia seems to be saying, where did he come from?

Mangcu also confronts one of the most prominent aspects of Thabo Mbeki’s political style when he writes:

Nothing could be more undermining of that constitutional stipulation than the president’s constant appeals to race to dismiss his critics. We must rebel against the “blacker-than-thou” brigade in our government. We’ve been there, done that, and have the T-shirts to show for it, literally. This use of race in defence of the powerful trivialises the real problems of racism affecting ordinary folks on a daily basis.

And then this morning – again in Business Day, who surely has by far the most provocative and interesting opinion pages of any newspaper in South Africa – Neva Makgetla addresses one of the most important issues around how we deal with corruption in our political system.

Makgetla writes in her personal capacity but actually works as sector strategies co-ordinator in the Presidency. She bemoans the fact that politicians and political parties misuse the slogan “innocent until proven guilty” to evade responsibility for their actions.

Of course, this is one of my hobby horses, so I was deeply impressed by the balanced and reasoned arguments put forward by him. The money quote:

Still, even if many allegations are wrong, SA can’t afford to let corrupt politicians or officials hold office until they face a criminal trial. That high standard of proof would entrench the power of the rich, who by definition have the greatest capacity to corrupt government leaders. In short, we need clear ground rules on the standard of evidence for getting rid of dishonest officials, whether administratively or through elections. How bad must the transgression be, and what level of proof should be required? Should a politician’s previous record — in the antiapartheid struggle or since then — be taken into account? Perhaps, as with other dismissals, the standard of proof should be only the preponderance of the evidence. That would mean that a government leader could be forced out if there were convincing evidence of their wrongdoing, even if it did not reach beyond all reasonable doubts.

Everywhere voices are speaking up against the arrogance and stupidity of power. Will we all one day look back and realise that ironically we have Jacob Zuma to thank for our open and robust political culture? I can only hope.

2015 Constitutionally Speaking | website created by Idea in a Forest