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
2 April 2009

Surely not?

I fear I might have been infected by the conspiracy virus now doing the rounds in South Africa. It seems to be fatal to any logical and coherent thought, so I am a bit distressed. Surely this cannot happen to me? Only ANC NEC members and those types who think Jacob Zuma is the black Messiah and that he will be pro-poor (yeah, right) are supposed to succumb to the virus. Soon I might be contacting an IT specialist to help me to play recordings of Jacob Zuma speeches backward to try and find out what hidden messages are contained in the pearls of wisdom that seem to flow out of his mouth at an alarming rate.

You see, when I was at school during the apartheid era, we were continuously warned about the dangerous “communistic” messages hidden in records by such counter-revolutionaries (oops, I forgot, during the apartheid era “counter-revolutionaries” were called “communists and terrorists”), as Queen (always liked that band for some reason….), The  Rolling Stones and Bob Dylan.

When you played these records backwards, we were told, it contained messages about how one should love Satan and how one should believe in equality and non-discrimination (which were both illegal at the time, I think). Problem was, I never could figure out how to play records (or, later, CD’s) backwards, so I missed out on being a Satanist (and killing black cats, wearing black clothes and staying up half the night chanting the Lord’s Prayer backwards did seem like a bit of a bother). I did have an alarming thought or two about whether apartheid was really such a bright idea and whether one person one vote would not be more fair, but maybe that was just because I listened to David Kramer and Sipho “Hotstix” Mabusa.

In any case, I have been troubled for the past day or two about why Judge President John Hlophe (and there you thought I was going to write a whole post without mentioning him) seems to be trying everything possible – even handing in a sick note for goodness sake! – to try and avoid a JSC hearing.

It was only when I had the absurd thought that maybe Hlophe was hoping that a differently constituted JSC disciplinary committee would absolve him of all charges after the election that I went round the bend and came up with a conspiracy theory all of my own.

There are thirteen members on the JSC disciplinary committee. These arethe chief justice (CJ Langa), the president of the Supreme Court of Appeal (J Lex Mpati), a senior judge president (J Bernard Ngoepe), the justice minister (Min Enver Surty), two advocates nominated by the profession (MTK Moerane, M Seligson) two attorneys nominated by the profession (J von Klemperer, M Ngubane) one university law teacher (J Neethling), and four presidential appointees (G Bizos SC, S Nthai SC, K Moroka, J Ernstzen). Langa and Surty have recused themselves, so only eleven members will hear the Hlophe case if it proceeds on Saturday.

But what could happen after the election? The President could replace four members on the JSC with members supportive of Hlophe if he so wished. He could also appoint a “sympathetic” Justice Minister. The Chief Justice have recused himself. So, if a “deal” had been made between Hlophe and Mr Zuma, the latter could ensure 5 votes for Hlophe on the JSC by manipulating the JSC appointments process. Then Hlophe only had to secure the support of one more member of the JSC to ensure that the JSC would not be able to vote for his impeachment.

I am not being sarcastic when I say this scenario is so preposterous that I refuse to seriously contemplate it. I happen to think the ANC will let Hlophe go if it came to that. After all, nothing rides for the ANC on his survival as a judge and the ANC and Zuma have a lot to lose by being seen so blatantly to undermine the constitutional institutions that have been put in place to safeguard our democracy. That is also why I believe the ANC majority in parliament will vote for Hlophe’s impeachment if the JSC recommends it.

This is not because the ANC would have had a sudden attack of morals or high principles, but because it would not be in the interest of the ANC to upset big business who might accept many things but would really want a relatively honest judiciary to ensure some legal certainty and to secure their interest. And what big business wants – seeing that they donate the big bucks to the political parties and secure BEE deals – they usually get.

So, even if this is the Judge President’s legal and political strategy, I suspect it is misguided.

But in the off chance that President Zuma replaces those members of the JSC who are perceived to be independent and might have voted against Hlophe during the current process, we would all know for certain what kind of President Mr Zuma would be. And we would all have to be very afraid.

Meanwhile, I am going to look for my old Queen CD’s. Maybe I can get the CD player to go backwards if I sing Umshini Wam over and over again. Come to think of it, what will one hear when one plays Umshini wam backwards? I suspect the comrades will be upset because what they will hear is: “I love capitalism and big business. Bring me my Mercedes Benz…..”

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