Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
29 October 2009

What is Miss Jackie up to?

What is Jackie Selebi up to? (I sommer call him “Ms Jackie” because of his child-bearing hips and his predilection for expensive Italian shoes….) Why is Selebi’s lawyer arguing today for the recusal of the judge sitting in his criminal trial when things have been going rather well for Selebi? What with the state’s star witness having admitted that he is a serial liar and having self-destructed on the witness stand, it is unclear why Selebi is complaining so bitterly about the alleged bias of Judge Meyer Joffe.

Usually counsel for the defense only bring such a drastic application for the recusal of a judge when all seems to be lost and when a conviction seems almost certain, so why this application now? I have not attended the trial, but if the newspaper reports are even remotely accurate, it is clear that Selebi’s application has no chance of succeeding. 

Of course, section 34 of the Constitution states that everyone has the right to have their dispute resolved in a fair public hearing before a court, while section 35 of the Constitution guarantees for every accused person the right to a fair trial which means the judge hearing the case must apply the law and assess the facts of the case impartially and without fear, favour or prejudice.

At the same time the Constitutional Court has stated that given the special training and experience of judges there is a presumption that the sitting judge will be impartial and fair and thus an applicant who alleges that a judge is biased must establish that. The Court also held that this presumption of impartiality and fairness will not be easily dislodged. Judges have a concomitant duty to sit in any case in which they are not obliged to recuse themselves so a judge cannot recuse him or herself merely because that would make things easier or because of an unproven fear by an accused or the state that the judge might be biased.

The test for recusal is as follows:

The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.

In the Wouter Basson case the state made an application for the judge to recuse himself but the rejection of that application suggests that Selebi will have no better luck in this case. (Ironically Selebi’s lawyer, who is arguing for the recusal of Judge Joffe in this case, was defending Basson at the time and opposed the State’s application for a recusal of Judge Willie Hartzenberg.)

In the Basson case the state claimed that during the trial Judge Hartzenberg had made remarks that gave rise to a reasonable apprehension of bias and that the legal rulings and factual findings made against the state by the judge were not only wrong, but were so unreasonable and one-sided as to give rise to a reasonable apprehension of bias.

In dealing with these issues the Constitutional Court cautioned as follows:

[T]his Court should bear in mind that in long criminal trials a judge may at times make remarks that are inappropriate, or display irritation towards counsel. At times such interventions may arise from attempts at humour. In considering the question of whether such remarks give rise to a reasonable apprehension of bias, a court should not hold a judge to an ideal standard which would be difficult to achieve.

Thus the fact that Harzenberg had complained that the state was conducting “a trial by ambush”, that he was “bored to death” by the state’s evidence, that counsel for the state was confused, that he had remarked that he had bruised the prosecutors ego, that he had laughed with counsel for the accused about the unsuccessful actions of the Assets Forfeiture Unit and that he had interfered with the cross examination of Basson did not establish, according to the Constitutional Court, a reasonable apprehension of bias required for a recusal order to have been granted.

The various mistakes of facts and law made by Hartzenberg J also did not convince the Constitutional Court that there was a reasonable apprehension of bias on the part of judge Hartzenberg.

This means that absent some new earth-shattering revelations about the alleged bias of Judge Joffe (secret tapes made by the National Intelligence Services, perhaps?), it is very difficult to imagine that the Selebi application will be successful.

Perhaps Selebi asked his legal counsel to bring this application because, not being a lawyer and being hard-headed, he really felt that the Judge was biased and thought there would be grounds for appeal if the judge did not recuse himself. Maybe he is just a difficult client who does not understand the law?

Or the defense is playing for time as it tries to secure additional evidence to discredit the state’s case? Or it is trying to intimidate the judge? Or it is stalling because it heard that the state is preparing to present bombshell evidence that will further tarnish the image and credibility of our former top-cop who, after all, was friends with Aglioti (“finish en klaar”) despite the fact that Agliotti is now emerging as one of the biggest charlatans and liars in the history of the criminal underworld in South Africa.

Whatever the reasons for this application, one thing is sure: thank goodness Ms Jackie is not our top cop anymore. Imagine having a commissioner of police who was either so stupid that he could not see that Agliotti was a crook or a liar, or was so “skelm” himself that he thought nothing of befriending a gangster and then allegedly taking hundreds of thousands of Rands from that gangster? The only person that must still be thinking that Ms Jackie was Police Commissioner Material must be our former President. But then again, he also never knew anyone who died of AIDS and thought no-one would ever be robbed walking to the SABC offices in Auckland Park. . .

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