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
30 July 2013

Vavi: How many people truly judge others objectively?

It is very difficult – some would say impossible – entirely to escape your own skin, your sex and gender, your political commitments, your social background, your class, your moral beliefs or your economic interests. No person floats above the world and makes decisions about his or her place in the world free from these influences. When a scandal breaks about a public figure (as it did this weekend around Zwelinzima Vavi), the manner in which people respond to the scandal – in the fog of accusations and counter-accusations – often serve as a Rorschach test of who they are and what they believe.

As I read the claims and counter claims of Zwelinzima Vavi and the woman who accused him of raping her, a sombre, debilitating sadness came over me. My instinctive first response went something like this: rape, for god’s sake; surely not Zwelinzima Vavi; surely not him; surely it must be a set-up?

I scanned his statement, the comments on Twitter, as well as newspaper reports looking for information that would justify this view. After all, Vavi has been fearless in his criticism of the increasingly widespread phenomenon of corruption within the tripartite alliance. He stood up against Aids denialism. He presents himself as a champion of the poor and the marginalised. He speaks out against the abuse of power by the wealthy and politically connected. For these and other reasons, I felt myself committed to his innocence – both on the rape charges and on the charges of abuse of power and sexual harassment.

It was only after an hour or two that I came to my senses. Why was I trying to find excuses to reject the veracity of the allegations of rape (and sexual harassment) against Vavi – and that without having much information to go on? Why was I trying to avert my eyes from the fact that – even on his own version of events – he seemed to have abused his position of power (as union leader and as a powerful man) to exploit a woman – all for sexual gratification?

But then I read allegations that the woman tried to extort R2 million from Vavi and that she decided on Monday not to pursue the sexual harassment charges against Vavi. Surely this on its own says nothing about whether Vavi had raped or abused his power to sexually harass the woman. But in the context of the bitter political fight between various political factions inside Cosatu, I was utterly confused.

I am well aware that allegations of rape made by a woman against a powerful man are all too often wrongly dismissed out of hand by other men or by individuals who share the same race, political views or factional interests as the man being accused of rape. The deeply entrenched narrative (promoted by many powerful men), that woman often falsely accuse men of rape to get back at them or to gain some emotional or financial benefit, often contribute to the phenomenon of victim blaming.

Yet my first impulse when I heard that Vavi was accused of rape and that he was claiming that this was done to extort money from him, was to believe him and dismiss the claims of the complainant out of hand.

As I write this, I have no idea where the truth lies. I do know that (even on his own account) Vavi acted disgracefully by abusing his power as an employer in order to obtain sexual favours from a woman he had employed at his office. I do not know whether the woman was enticed into extorting money from him by Vavi’s wife (as the woman claims). Neither do I know what exactly happened between Vavi and the woman and whether the admitted sexual contact was consensual or whether it constituted rape.

One way to deal with this uncertainty is to rely on formalistic legal processes and to claim that Vavi is innocent until proven guilty and that he must therefore be supported until such time as he is found guilty in a court of law of either sexual harassment or rape. Another way is to assume that, given the power relations in society and the deeply sexist manner in which claims by woman about abuse against them are often dealt with, Vavi is guilty of everything he is accused of.

But the fact of the matter is that – at this moment at least – it is impossible to know with absolute certainty where the truth lies – at least about the claims of harassment and rape. You can judge Vavi, not on fake moral grounds for having extra-marital sex, but (at the very least) because he seemed to have appointed a woman without following the prescribed procedure and then used his influence and power to pursue a sexual relationship with her. But how do you judge the contested accusations and counter accusations of Vavi and his accuser?

Which brings me to the heart of the matter.

I am amazed at how convinced and assured some commentators are about what exactly happened or didn’t happen between Vavi and the woman who accused him of harassment and rape. Some people seem to have taken Vavi’s side, either because they always take the side of a man accused of sexual abuse, or because they support Vavi because of his political commitments and views.

Others assume that he is guilty of everything that he has been accused of, either because he is a powerful man and they always (wrongly) assume that accusations of rape or sexual harassment are true, or because they oppose him because of their own political, social, racial or other beliefs or commitments.

We all experience the push and pull of our own beliefs and our own multi-faceted identities. Who we are – our race, sex, language, class, political beliefs or sexual orientation, for example – and how we experience the world, often guide our first responses to public events.

Whether we believe the allegations of racism levelled by yet another black woman abused at Virgin Active by a white man; whether we believe the allegations of sexism against a man accused of harassing a woman at work; whether we think Oscar Pistorius is a villain or a hero; whether we believe a cabinet Minister is involved in corruption as alleged by the Mail & Guardian, are at least partly mediated through our own experiences and through our perceptions of the world shaped by who we are.

That is why white Afrikaners are more likely to come to the defence of Oscar Pistorius who killed his own girlfriend and – we just don’t know yet – might or might not be convicted of either murder or culpable homicide for doing so. That is also why some people who staunchly support him are convinced that President Jacob Zuma was framed and that it is utterly irrelevant that Schabir Shaik was convicted of bribing Zuma.

It is impossible to avoid making judgments. Personally, I would not like to invite Oscar Pistorius into my home – regardless of whether he is ever convicted of murder or culpable homicide. I would not feel comfortable having a drink with somebody who has the ability to shoot and kill somebody hiding behind a toilet door. But I know some other people who still love Oscar and will do so regardless of what the court decides because they believe that they, too, would have shot and killed any person hiding in their bathroom, or because they are entranced by the fact that Oscar is white or famous or rich or has overcome adversity to shine on the world stage.

But when we do make judgments, it is perhaps helpful not to be too certain or too categorical about our own beliefs and to keep on asking ourselves why we support one person while condemning another. Are we blindly giving support to a charlatan or criminal because of his or her race, sex, gender, ethnicity, religion, sexual orientation or political affiliation? Or are we condemning somebody because he or she belongs to the so-called “wrong” race, sex, ethnic group, religion, or political party?

How many people can truly tell?

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