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
12 November 2009

“The Beast”, the Rule of Law and petty politics

I am in a bit of a fix: I often complain bitterly about the tendency of officials and politicians to ignore the clear provisions of the Constitution or relevant legislation to achieve politically expedient goals. On this Blog I have ranted about the unlawful release of Schabir Shaik, the probably unlawful firing of Vusi Pikoli, the failure of the JSC properly to investigate complaints against Judge President Hlophe, the probably unlawful dropping of charges against President Jacob Zuma and any number of other matters where the Rule of Law was not adhered to.

Does this mean I should applaud sports Minister Makhenkesi Stofile’s decision not to assist with the granting of citizenship to one of my heroes, Tendai “Beast” Mtawarira? Mtawarira was born in Zimbabwe and although he has already played 15 test matches for the Springbok Rugby team it now transpires that those bright sparks at Springbok Rugby have never made sure that Mtawarira becomes a South African citizen. Only South African citizens can play for the national team so now we will have to take on France on Friday night without “The Beast” in the front row. It’s a disaster.

On its face, the Minister is acting in an admirable fashion, sticking to the rules and upholding the Rule of Law. The Sports Ministry explained the decision last night in the following terms:

This request to have the Minister use his position to have the process of securing permanent residence and subsequently, citizenship expedited ahead of the year end tour in Europe, has exposed our sport administrators’ clear disrespect or lack of understanding of our laws.

Talented as he is, Tendai, like all foreign nationals plying their trade in South Africa, is bound by the laws of this country. The migration laws of our country are clear on issues relating to permanent residence and citizenship. We expect our sport administrators to understand and respect legislation that regulate their business. None of the athletes, sport codes, or federations can be bigger than the country.

While Tendai is a live wire on the field of play, the question is whether it is, in the first place, justifiable to say he has scarce skills – the rationale that would have enabled him to obtain the current work permit. If we go the route our rugby administrators are requesting us to take, and facilitate the fast-tracking of Tendai’s citizenship, what would this say to all rugby players in our country? We cannot as a government department responsible for sport and recreation in this country, afford to insult our players like this.

It is clear that the managers at Springbok Rugby did not do their jobs properly. Now they want to Minister to fix their problem for them. Surely, the Rule of Law requires the Minister to treat everyone the same and not to do special favours for “The Beast” just because he would have grinded the French front-row into the ground on Friday night if he had been allowed to play.

The South African Citizenship Act 88 of 1998 states that the Minister may grant South African citizenship to an applicant who can show, amongst other things, that he or she has been a permanent resident for at least one year, has lived in South Africa for at least four more years,   is of good character, he or she intends to continue staying in the country, can speak at least one of the official languages and “he or she has an adequate knowledge of the responsibilities and privileges of South African citizenship”.

The Minister has a discretion to grant citizenship, but can only grant citizenship if the prescribed requirements are met.

The problem is that even if the Minister had wanted to help SA Rugby, all the requirements that would have allowed him to grant citizenship are not in place. Although “The Beast” has a work permit, he is not a permanent resident of South Africa. He could legally be granted permanent residency by the Director General of Home Affairs in terms of  27(b) of the Immigration Act 13 of 2002 because he “possesses extraordinary skills or qualifications”. The DG has a discretion in this regard and if he wants to, he would be well within the limits of the law to issue Mtawarira with a permanent residency permit. The Minister would then be legally entitled to grant him citizenship one year later without breaking any laws or disrespecting the Rule of Law.

By the way, the Act actually does not refer to “scarce skills” as the Ministry of Sport seems to think. What is required is “extraordinary skills”. Surely being able to scrum Rugby opponents of the highest calibre to a pulp must count as “extraordinary skills”. So one wonders – based on the statement above – whether the Ministry of Sport is perhaps less concerned about the Rule of Law and more about teaching those pesky Springboks a lesson. Isn’t this a bit petty? 

Sadly, I have to admit that although the statement from the Ministry of Sport is a bit misguided and confused about the law, in principle the Minister is doing the right thing. Viva the Rule of Law!

This does not mean the Minister should not instruct his DG to issue a permanent residency permit forthwith so that Mtawarira’s application for citizenship could be considered in one year’s time. You know, the World Cup is around the corner and we need that guy in our scrum. If the Minister then refuses to grant citizenship – and only then – will one start to suspect that the Minister is acting in a petty fashion to “punish” SA Rugby because his brother Mike Stofile was beaten by Oregan Hoskins for the presidency of the South African Rugby Union (SARU).

Until then, I will have to respect the Minister’s decision to respect the law.
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