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
10 September 2008

The double standards of Jacob Zuma supporters

We are often told that Jacob Zuma has a right to be presumed innocent until proven guilty. Some go further and argue that we are not allowed to make any adverse ethical judgment about the President of the ANC because if we did this we would be infringing on his right to a fair trial (and sometimes, sommer his right to dignity and privacy as well).

As I have argued before, this kind of reasoning is based on a complete misunderstanding of the right to a fair trial guaranteed by the Constitution. The right to a fair trial includes the right to be presumed innocent by a court until such time as the state has proven its case beyond reasonable doubt. There is no right in the Constitution not to be charged or to be presumed innocent by ordinary citizens after one has been charged.

But if we take these supporters of Jacob Zuma at their word and if we presume that they really believe only a court of law can make any value judgment about the moral character of Jacob Zuma, then we should at least expect some consistency from them. This consistency is, however, often spectacularly lacking.

Such a consistent position would require all of us not to prejudge the case against Mr Zuma and not to jump to any conclusions about either his guilt or his innocence. Instead, some of his supporters seem to have concluded that Mr Zuma is innocent, no matter what might be shown before the court. They really do not want any facts to get in the way of the perks they see glimmering on the horizon. Why bother with facts if bluster will serve you just as well.

I was therefore not surprised to read that Young Communist League (YCL) Gauteng secretary Alex Mashilo believes that a “sober judge” will scrap corruption charges against African National Congress president Jacob Zuma. According to The Times he said:

“We believe the court will be sober… No sober judge will be ruling in favour of the prosecution… The NPA [National Prosecuting Authority] has violated its own rules. There is no way that the judge can find in favour of the NPA. If the court rules otherwise … we will unleash a mass struggle campaign,” said Mashilo, explaining this meant that they would hold marches and pickets. We will mobilise all our resources to make sure the case comes to an end.”

If Mr Zuma must be presumed innocent of any wrongdoing, surely so does the NPA? Someone should tell these youngsters that it is not for the YCL or anyone else to decide how the judge should rule. I suspect Mr Mashilo is not a lawyer either, so he cannot even be said to be reverting to informed speculation. Wishful thinking is more like it.

The same argument holds for all those people who claim Mr. Zuma’s rights have allegedly been violated. Only a court of law can make a definitive finding on this matter. If a court finds that Mr Zuma’s rights have been violated and – very importantly – that such a violation has made it impossible for Zuma to receive a fair trial before an independent and impartial judge, then fair enough: we can all go home  then and Mr Zuma can pack his bags for the Unions buildings instead of for Polsmoor Prison.

But a court may well find that there was no breach of Mr Zuma’s rights or that even though there might have been a breach of his rights, he will still be able to receive a fair trial. Then Mr Zuma should surely “get his day in court” to determine whether he took all that money from a convicted fraudster and did favours for him with or without the intention to be corrupt and fraudulent.

I am obviously being ironic here, because there is as slim a chance of the Youth League types accepting a court verdict against Mr Zuma and singing the praises of our independent judiciary afterward as there is of me winning the Miss World competition. (I would probably be able to pull off the interview section, explaining – as those competitors all do – how I will fight for world peace and the children, but Iet’s face it, I probably won’t be able to pull off the swimwear section of the competition….)

Reading statements like that of Mr Mashilo reminds me again what a wonderfully free country we live in. In our beautiful democracy even a youngster like Mashilo is free to make an ass of himself and be qouted respectfully in the media nevertheless. Viva democracy.

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