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
15 December 2006

What now for Shabir Shaik?

It is reported this afternoon that Shabir Schaik’s lawyers will be lodging papers with the Constitutional Court later today to ask for permission to appeal the conviction and sentence of Shaik for fraud and corruption.

It is unclear on what grounds the appeal will be based or what exactly will be appealed. However, the SCA refused to hear the appeal from the High Court on count 1 – the charge of general corruption of Zuma by Shaik (what judge Squires did not call the “generally corrupt relationship”) – so it does not seem likely that Shaik would be able to appeal the conviction on the first count to the CC.

On the basis of existing precedent, Shaik’s lawyers have a mountain to climb. They will have to show that:

  • the appeal deals with a constitutional matter or an issue connected with a decision on a constitutional matter;
  • there is a reasonable prospect that the appeal will succeed; and
  • it is in the interest of justice for the CC to hear the appeal.

They will also have to explain why they are lodging the appeal so late and why they had not properly raised the constitutional issues in either the High Court or in the SCA. (They may have raised constitutional issues, but this is not apparent in the SCA judgment.)

The right to a fair trial is guaranteed in the Constitution, so the lawyers could argue, for example, that the admission of the encrypted fax tainted the fairness of the trial. This aspect also has a direct relevance for any case to be brought against Mr Zuma, so it would not be far fetched to speculate that the decision to appeal was taken after consulting Mr Zuma or his lawyers.

The big problem with an appeal is that there might not be a reasonable prospect of success. The SCA confirmed admissibility of the fax on both common law grounds and on the grounds of legislation. I would be surprised if the CC overturned this aspect of the case by finding both reasons for admissibility was unconstitutionally applied.

Having said this, the Constitutional Court has an extraordinary wide discretion to decide whether to hear the case and does not always appear hundred percent consistent when deciding on whether to hear an appeal or not.

The crux here is the question of whether they think an appeal is “in the interest of justice”. Given the high political and public profile of the case and given the possible implications of this case for a prosecution of Mr Jacob Zuma, the members of the CC might feel that the integrity of the judicial system requires their intervention.

The CC can decide to reject leave to appeal on the papers alone without giving reasons or they can decide to hear argument on the question of whether leave to appeal should be granted and can at the same time also instruct the lawyers to be ready to argue the merits of the case.

I do not know what the basis for the appeal will be, so I can’t really make an informed comment on prospects for success. However, the politically astute thing for the CC to do (and they have shown themselves to be quite politically astute in the past), would be to hear argument on why leave to appeal should be granted, but then to dismiss the application.

That course of action would allow the CC to give their stamp of approval on the judgment of the SCA and would thus enhance the legitimacy of the judicial system as a whole. It would also confirm the principle that the fax would be admissible in the event of a Mr. Jacob Zuma ever standing trial for the same offence.

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