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
14 December 2010

State security and drug trafficing

The KZN High Court (Pietermaritzburg) intends approaching the Director of Public Prosecutions to see whether a criminal case can be brought against the SABC for airing an interview with a crucial state witness, says a report on the Independent Online website. The public broadcaster’s Special Assignment programme screened an interview with convicted drug mule Tessa Beetge from a jail in Sao Paolo, Brazil, where she is serving an eight-year jail sentence.

She is a crucial state witness in the drug trafficking case involving Sheryl Cwele, the wife of State Security Minister Siyabonga Cwele. Judge Piet Koene said he had not seen the broadcast. “I did not see it. I am still looking into it. I intend to approach the DDP to investigate whether criminal offence can be instituted against the SABC,” he is quoted as saying.

I have not seen the interview, so I am not sure whether such a criminal prosecution will succeed. However, when the National Director of Public Prosecutions considers the options, he will do well to keep in mind the Supreme Court of Appeal judgment in Midi Television (Pty) Ltd vs National Directorate of Public Prosecutions.

In that case Judge Nugent (who has been rather rudely treated by the media recently) in a case dealing with pre-publication censorship to protect the fair trial process, argued that the publication of information — even when it relates o an upcoming court case — could only be stopped if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place.

Mere conjecture or speculation that prejudice might occur will not be enough. Even then the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper (0r in this case the SABC) but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution – including the right to a fair trial.

In his case the wife of the Minister of State Security is on trial for drug related offences. It would therefore clearly be in the public interest to provide the broader public with information about the case. In fact, it is rather extraordinary that the wife of the person entrusted with keeping state secrets (who may or may not have separated — depending on who one believes) is being charged with drug trafficking and that allegations have been made that the wife had connections in the police to protect her alleged drug mules.

In many other democracies the Minister would surely have been asked to step aside until the case has been finalised. In countries not obsessed by the shenanigans of the police chief making racial slurs against a suspect in a murder trial or the latest racist outbursts of a popular Afrikaans singer, this whole sage might have received far more prominent coverage and might have severely embarrassed the government.

For a government claiming that state secrets are so important that a whole new act (The Protection of Information Act) has to be adopted to protect South Africa from dark forces hell bent on undermining its security (which one presumes would include large drug syndicates), it is rather weird that so little has been said by the government about this case in which the wife of the Minister of State Security has been implicated. State security is obviously not that important when it is the wife of a Minister who is involved in allegedly compromising that security.

The big question in this case will therefore be whether the broadcasting of the interview could be shown to pose a “demonstrable and substantial”  threat to the fair trial of the Minister’s wife. If the interview had clearly and demonstrably weakened the state’s case against Sheryl Cwele, then the state may well have a case against the SABC. But this would be rather difficult to prove beyond a reasonable doubt. (Remember, even the SABC has the right to be presumed innocent until proven guilty).

Meanwhile a larger question remains: what does President Zuma think about the fact that his close ally and his MInister entrusted with State secrets is still married to a woman allegedly to have been involved in a drug smuggling ring? Is he concerned? Has he asked the Minister whether he knew about his wife’s alleged activities? Has he instructed anyone to investigate whether state security might have been compromised?

If he has not done any of these things, how seriously does he really take state security? Is all this talk about state security then nothing more than a fig leaf to try and muzzle the media and to stop them from reporting on embarrassing revelations about government corruption?

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