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
1 June 2011

“Truth and deceit know no status or occupation”

The alleged “investigation” and subsequent report by the then Public Protector, Lawrence Mushwana, into the Oilgate scandal lambasted the Mail & Guardian newspaper, contending that the newspaper’s reports on the scandal was “factually incorrect, based on incomplete information and documentation, and comprised unsubstantiated suggestions and and unjustified speculations”. Today a full bench of five judges of the Supreme Court of Appeal (SCA) confirmed that there was in essence no investigation by the Public Protector at all and that the report was no more than a whitewash.

In a damning judgment – which places a question mark over Adv Mushwana’s fitness to hold office as head of the South African Human Rights Commission – the SCA confirmed that the Public Protector “had no basis for discrediting the newspaper as he did”. In the process, the SCA provided clarity on the legal required manner in which the Public Protector had to investigate serious allegations of malfeasance and corruption. The judgement emphasises the importance of the role of the Public Protector in safeguarding our democracy and strengthens its hand in dealing with future investigations.

Although the judgement comes as a stunning loss for Muswhana, it must be viewed as a victory for the institution of the Public Protector.

The SCA judgement reminds us that – when investigating a complaint – the Public Protector must do more than merely adjudicating on verified information placed before it by others. The Public Protector is an investigator who, either on own innitiative or because it received a complaint, has a pro-active function to get to the bottom of allegations of maladministration or corruption. “He or she is expected not to sit back and wait for proof where there are allegations of malfeasance but is enjoined to actively discover the truth.”

As the SCA judgement so eloquently stated today:

The Public Protector must not only discover the truth but must also inspire confidence that the truth has been discovered. It is no less important for the public to be assured that there has been no malfeasance or impropriety in public life, if there has not been, as it is for malfeasance and impropriety to be exposed where it exists. There is no justification for saying to the public that it must simply accept that there has not been conduct of that kind only because evidence has not been advanced that proves the contrary. Before the Public Protector assures the public that there has not been such conduct he or she must be sure that it has not occurred. And if corroboration is required before he or she can be sure then corroboration must necessarily be found. The function of the Public Protector is as much about public confidence that the truth has been discovered as it is about discovering the truth.

When investigating any allegations levelled at state officials, politicians or public bodies, the Public Protector has to conduct such an investigation with an open mind, which is “universal and indispensable to an investigation of any kind”. That is the benchmark against which the SCA assessed the investigation in the Oilgate case.

That state of mind is one that is open to all possibilities and reflects upon whether the truth has been told. It is not one that is unduly suspicious but it is also not one that is unduly believing. It asks whether the pieces that have been presented fit into place. If at first they do not then it asks questions and seeks out information until they do. It is also not a state of mind that remains static. If the pieces remain out of place after further enquiry then it might progress to being a suspicious mind. And if the pieces still do not fit then it might progress to conviction that there is deceit. How it progresses will vary with the exigencies of the particular case. One question might lead to another, and that question to yet another, and so it might go on. But whatever the state of mind that is finally reached, it must always start out as one that is open and enquiring.

Today the SCA found that the Public Protector had not conducted the Oilgate investigation with an open mind. He had, in effect, acted as a spokesperson for those who he was called upon to investigate, merely stating as fact the claims made by the various bodies and individuals under investigation without testing the veracity of these claims in any way. This he did because he assumed that persons in high office are always persons of integrity whose version of events must be believed. The SCA found that this attitude was inappropriate.

Truth and deceit know no status or occupation. One expects integrity from high office but experience shows that at times it is not there. And while experience shows that journalists can be cavalier there are times when they are not. It is the material that determines the veracity of the speaker and not the other way round, and that applies universally across status and occupation. It is the hallmark of this investigation that responses were sought from people in high office and recited without question as if they were fact. An investigation that is conducted in that state of mind might just as well not be conducted at all. The investigator is then no more than a spokesman, who adds his or her imprimatur to what has been said, which is all that really occurred in this case. I have said before that an investigation calls for an open and enquiring mind. There is no evidence of that state of mind in this investigation.

The Mail & Guardian has now been vindicated – at least to the extent that the Public Protector’s  criticism of the newspaper was unfounded. One would think that Adv Mushwana, as well as the politicians who lambasted the newspaper after the whitewash report was made public, owe the newspaper an apology. Although is is highly unlikely that the newspaper’s detractors will apologise, it is worth noting that serious allegations were levelled at the newspaper at the time.

As the SCA judgement notes, Hansard’s report of proceedings in the National Assembly when the report was tabled records one member of Parliament asking of an opposing political party, on the basis of that finding, and to applause, what kind of party it was that relied upon newspaper reports of the Mail & Guardian for its political interventions. Another described the Mail & Guardian as “the choirmaster in the chorus of unsubstantiated allegations”. Yet another said that the report should “caution us to be ready for what we read in the papers and the credibility of relying on such material as [being] accurate and dependable”.

I hold no brief for the newspaper. Newspapers do make mistakes and if they do, they can be sued for defamation or taken to the Press Ombud. But in these days when the printed media is being used by some as a scapegoat to avert attention from the governance problems of the governing party or from serious allegations of corruption by politicians, one may do well to remember that one should not easily assume that allegations printed in the media forms part of a bourgeois or racist plot to discredit the National Democratic Revolution.

In short, what is required – for the media, the public, the politicians and the Public Protector – is to keep an open mind until the truth has been discovered. The Public Protector – using the guidelines developed by the SCA – is well-placed to discover that truth. Let us hope that the new Public Protector will continue the work she has been doing lately and will not shrink from her constitutionally mandated task. Our democracy deserves no less.

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