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
6 August 2009

Too early to tell?

Why has President Jacob Zuma decided to appoint Justice Sandile Ngcobo as Chief Justice? What does it say about the ANC and the President’s view on the independence of the judiciary and its role in our constitutional democracy? Justice Ngcobo will serve only 18 months as Chief Justice before President Zuma will again have the opportunity to appoint a Chief Justice – this time perhaps from the four new appointments to be made later this year.

There will be doomsayers who will pull out their hair (if they have any left), gnash their teeth and shout to the heavens because, so they will claim, the ANC is busy fundamentally to undermine the independence of the judiciary and the appointment of Justice Ngcobo is just a stop-gap measure to pave the way for the appointment of John Hlophe as Chief Justice in two years time when Ngcobo must retire.

It seems to me such an analysis will be too simplistic. In my opinion the move should be interpreted as part of a long-term strategy by the ANC to speed up the implementation of what it sees as the “transformation” of the judiciary. President Zuma has demonstrated over the past few months that he does not want to rock the boat and likes to make appointments that will not be too controversial.

As I have said before, Justice Ngcobo perfectly fits this bill as he will be the longest serving Justice on the Constitutional Court when he takes office as Chief Justice, is highly respected among other judges and lawyers and does not have the kind of baggage associated with some other judicial disasters.

At the same time, Ngcobo will retire in 2011 and the President will then be able to appoint another Chief Justice perceived to be more pliant and more executive minded. Like the US President who would want to appoint a Supreme Court justice whose philosophy closely resembles his own without upsetting public opinion too much, Zuma has therefore decided to appoint a safe Chief Justice and this will allow him to appoint another Chief Justice in 2011 when his power may be more deeply entrenched and he will thus be less fettered by concerns about rocking the boat.

This is not a short term game, but part of a long term strategy to “transform” the judiciary in line with the ANC January 8 statement of 2005 which said:

However, we are also confronted by the similarly important challenge to transform the collective mindset of the judiciary to bring it into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination.

The reality can no longer be avoided that many within our judiciary do not see themselves as being part of these masses, accountable to them, and inspired by their hopes, dreams and value systems. If this persists for too long, it will inevitably result in popular antagonism towards the judiciary and our courts, with serious and negative consequences for our democratic system as a whole.

Of course, it is unclear whether this statement means the ANC sees a “transformed” judiciary as one staffed by judges who will defend the constitution and the rights of the masses of our people whose rights will in the future as in the past – often! – be infringed by the legislature the executive and other powerful institutions, or whether it wants a judiciary staffed with judges who will conflate the interests of the masses of the people with the interests of the ANC ruling elite and will not check the abuse of power by the governing party, its lackeys and the business elites.

But these are of course things one can legitimately argue about in a democracy. Meanwhile the appointment of Justice Ngcobo provides some support for the view that the ANC really wants an independent judiciary and not a judiciary who will be too scared to enforce the rights of ordinary citizens.

However, the real test will come when the President has to appoint four new judges on the Constitutional Court and when Ngcobo retires and he has to appoint a new Chief Justice. Only then will we have a better picture of what the long term strategy of Zuma and the ANC regarding our judiciary might be.

So, I feel a bit like Chairman Mao who when asked what he thought the impact of the French revolution was, famously replied: “It is too early too tell.”

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