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
3 June 2009

The irritating Mr Ramatlhodi

Newly elected chair of Parliament’s Justice Committee, Ngoako Ramatlhodi, is new in the job, so maybe he will still learn to think before he speaks. The honorable member of Parliament, who faced charges of corruption before they were mysteriously dropped by the NPA, is not off to a good start and has made some statements that, at best, can be described as uninformed and, at worst, as dangerous.

Yesterday Ramatlhodi said that Chief Justice Pius Langa is a “source of irritation”. He said the ANC’s “irritation” with the Bench is caused by comments made by lawyers that Zuma “abused” the legal process in defending himself on corruption charges. Beeld reports as follows on these comments:

“Certain presiding officers are responsible for this irritation because they make comments about Zuma executing his constitutional rights. It cannot be that way.” After the meeting, Ramatlhodi said he was referring to Langa when he talked about “certain presiding officers”. “If we respect the Constitution, judges must do so as well; the Constitution must be respected in its entirety, not selectively.”

What utter rubbish. Pity my taxes will help to pay this guys salary because he clearly has no clue what he is talking about.

Where to begin?

Well, one assumes Ramatlhodi was referring to the judgment, written by Langa and signed on to by nine of the other ten Constitutional Court judges, in the case that Thint and Zuma brought to challenge the validity of the search warrants of their respective premises. Langa was therefore speaking for the majority of judges of the Constitutional Court and not in his personal capacity. There are therefore no comments made by the Chief Justice on this issue – only a judgment of the Constitutional Court.

Be that as it may, Ramatlhodi seems to be unfamiliar with the finer points of our Constitution. Section 2 states that the Constitution is the supreme law of the Republic while section 167(3)(a) states that the Constitutional Court is the highest court in constitutional matters. This court therefore has the final say on what the various provisions of the Constitution means. Section 165(4) states that an order or decision issued by a court binds all persons – even a fool like Ramatlhodi – while the preceding section requires all organs of state to assist and protect the courts to ensure the independence, impartiality and dignity of the courts.

This means that it is for the Constitutional Court – and not for Ramatlhodi – to decide what the Constitution means and its interpretation of the Constitution is final. One is of course free to criticise decisions of the court by analysing its reasoning and pointing out the problems with that reasoning. But it is just plain daft to say the judges of the Constitutional Court only respect some part of the Constitution when they are the one’s to say what that Constitution means. Unless, of course, one believes politicians and not judges should have the final say on what the Constitution means.

In any case, Ramatlhodi is also wrong about what the Constitutional Court actually said. I suspect he never read the relevant judgment (hey, he is a politician so is probably far too lazy to actually read mere judgments of our highest court) because his statement is really not – well, how shall I put it – true.

Let us look at what Chief Justice Langa wrote in his judgment to see how delusion (and irritatingly stupid) Ramatlhodi’s statement is:

This Court should discourage preliminary litigation that appears to have no purpose other than to circumvent the application of section 35(5). Allowing such litigation will often place prosecutors between a rock and a hard place. They must, on the one hand, resist preliminary challenges to their investigations and to the institution of proceedings against accused persons; on the other hand, they are simultaneously obliged to ensure the prompt commencement of trials. Generally disallowing such litigation would ensure that the trial court decides the pertinent issues, which it is best placed to do, and would ensure that trials start sooner rather than later. There can be no absolute rule in this regard, however. The courts’ doors should never be completely closed to litigants.

There were no comments here that Zuma abused the legal process. The Constitutional Court set out a general principle that trial courts should be left to make decisions about the fairness of a trial as they are best placed to do so. Any accused has all the rights safeguarded in section 35, but it is generally a good idea that these rights are exercised during the actual trial – not long before the trial starts.

If Ramatlhodi disagrees with this general statement and believes that accused persons (“criminals”, President Zuma usually calls them, when the accused is not himself) should generally be allowed to stall their criminal trials with endless preliminary appeals even before the trial starts, he is welcome to say so and to give reasons for his view. This he did not do. I suspect he  never will, because he cannot but agree with this sensible principle ennunciated by the Constitutional Court – he just did not want the principle to have been applied to Zuma (who, after all, is mos above the law).

In any event, the Constitutional Court applied this general principle and decided that it was in the interest of justice to consider Zuma’s case. Never did it say that Zuma had abused the process. Never did it refuse to hear the appeal. Never was Zuma denied his right to go to the highest court and claim that his right to a fair trial was infringed. Every single bit of the statement by Ramatlhodi is therefore spectacularly wrong.

But maybe I should not be so harsh on our new hero. After all, if this is the kind of rubbish, masquerading as intelligent criticism, that Ramatlhodi plans to embarrass himself with in the next five years, I will always have something to write about on this Blog. Maybe I should thank my lucky stars that Ramatlhodi is now a big wig in Parliament because it might just mean that I will be able to keep this Blog going merely by cutting and pasting the delightful pieces of wisdom that seems to pour out of the mouth of the honorable Ramatlhodi.

Just a pity this is not a fiction Blog because then I could have used more of Ramatlhodi’s statements.

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