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 November 2007

What kind of democracy do we live in?

On the day the Constitutional Court heard arguments in the case in which the Matatiele community challenged the validity of the constitutional amendment purporting to incorporate Matatiele into the Eastern Cape, the court was packed with members of the community.

While the advocates in flowing robes presented oral arguments, omies and tannies with weather-beaten faces and wrapped in blankets leaned forward in their chairs, intent on following the complicated legal arguments. When the community’s lawyer made what they thought was a good point, they sighed and nodded their heads.

For me it was a moving and uplifting scene because it demonstrated that somewhere a group of ordinary South African cared enough and trusted the Constitutional Court enough to come 800 kilometres to listen to arguments about their fate. It showed that people trusted the Court to give them a fair hearing.

I was therefore not surprised when the Constitutional Court found in favour of the community and found that the KwaZulu-Natal legislature had failed to adequately facilitate public involvement in their decision to go ahead with the boundary changes. They should have organised public hearings so that the affected communities could tell the legislature how they felt about this change.

During the oral arguments, the state contended that the legislature did not have to hold public hearings on a matter like this because the legislature was elected by the people and represented the people’s interest and need therefore not consult them in between elections.

Justice Sandile Ngcobo rebuked the government for making this argument, stating that it fundamentally misconstrued the nature of our democracy.

Our system of government requires that the people elect representatives who make laws on their behalf and contemplates that people will be given the opportunity to participate in the law-making process in certain circumstances. The law-making process will then produce a dialogue between the elected representatives of the people and the people themselves.

Unfortunately, the ANC has often misconstrued the nature of our democracy and has not always understood that the mere fact that the people elected them to lead does not mean they have a monopoly on wisdom and do not have to listen to the people when the people disagree with them.

In the Matatiele case, the ANC legislature was reminded that democracy requires more than voting every five years followed by instructions and orders by the winning lot. Sadly the ANC has not learnt this lesson. The Court forced the legislature to consult the community, which yesterday overwhelmingly expressed their opposition to the incorporation of Matatiele into the Eastern Cape at a meeting of the Portfolio Committee of the legislature.

Yet, using its majority in the committee, the ANC voted in favour of the amendment and thus ignored the wishes of the community. Of the dialogue envisaged by the Constitutional Court there was apparently no sign.

On the one hand these sad events show the limits of the Constitutional Court’s approach towards participatory democracy. In the end, a majority party can make any decision it sees fit, no matter what the community really wants. The Constitutional Court decision thus merely postponed the inevitable and represented a Pyhrric victory for the community.

But it also reminds us that democracy works best where there is a real contest and a real danger of a party losing power. Because the ANC is so deeply ensconced it can afford to be arrogant and heartless to a small community because others will still vote for them. Maybe it is inevitable that a arty with such an overwhelming majority would become arrogant, but maybe it is also a sign of a party led by a President who thinks he knows best.

Still, those omies and tannies who came to the Court will not forget what the ANC did to them – after all, not to be listened to is deeply frustrating and insulting.  As the wishes of more communities across South Africa are ignored because our President and his cabinet knows best, the electoral majority of the ANC will wane.

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