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
20 June 2008

Was there a “mandate” Mr Zuma?

One of the striking allegations made in the Constitutional Court complaint against Judge President John Hlophe is that he had told Justice Bess Nkabinde that he had a “mandate” to sway the Constitutional Court in the pending Zuma judgment.

Responding to this allegation African National Congress (ANC) secretary-general Gwede Mantashe yesterday dismissed any notion that Cape Judge President John Hlophe could have received a “mandate” from the party, saying that Hlophe was not a member of any decision-making structure of the ruling party.

The only thing I know is that Judge Hlophe is not a member of any of the structures of the ANC that provide mandates.

This is not good enough. If it turns out that Hlophe had indeed said that he had a mandate, what would be required is to ask Mr Jacob Zuma personally whether he knew Justice Hlophe, how well he knew Hlophe and how many times they have met, whether he had ever spoken about his trial with Judge President Hlophe and whether he had asked him to intervene on his behalf with the Constitutional Court. Mr Zuma should also be asked whether he had asked anyone else to speak to Judge President Hlophe.

Thint could also be approached and asked whether any of their officials knew Hlophe, had met with him and had asked him to intervene.

One would imagine that Judge President Hlophe himself would now have to say whether he told Justice Nkabinde that he had a mandate and if so what he meant by this. He should also be asked whether he knew Zuma, had spoken with Zuma or a representative of Thint, had met Zuma or a Thint representative, had ever discussed the cases under discussion with Zuma or a Thint representative, and whether he had agreed to act on behalf of Zuma or Thint.

Judge President Hlophe should also be required to say whether anyone else had ever approached him on behalf of Zuma or Thint. Unless he is going to claim that he never said this and that Justice Nkabinde was lying, but that would be difficult to pull off because Justice Nkabinde has rather less reason for lying that Hlophe. Or so it seems at least.

Clearly if there was a mandate it would not have come from the ANC structures but from one of the accused parties or one of their representatives. The ANC statement is therefore a red herring. Mr Zuma is the one who has to address this issue. He needs to make an unequivocal and blanket denial that he or one of his representatives have ever discussed the case with Hlophe. Failure to do so, will – rightly or wrongly – create grave suspicions against Mr Zuma and will further tarnish his image.

This is a good opportunity for some door-stop journalism of the E-TV variety. Journalists should ambush Mr Zuma and ask him these questions point blank and see how he reacts. It is him and not the ANC as an organisation that has something to answer for.

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