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
4 September 2009

Where was Zille?

Should Helen Zille have been part of the JSC committee who decided not to proceed to a full hearing in the matter between Judge President John Hlophe and the judges of the Constitutional Court? A clever and alert reader of this Blog thinks so – and I agree. This would mean the JSC was unlawfully constituted when it made its decision and on that ground alone the decision could be set aside by a court.

Section 178(k) of the Constitution states that “when considering matters relating to a specific High Court,” the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them, must form part of the JSC. The question is what would constitute “matters relating to a High Court”.

The Premier already forms part of the JSC when it decides on appointments for the High Court in his or her province, so the composition of the High Court is deemed to be “a matter relating to a High Court”. It seems to me that it follows by necessary implication that if the Premier is involved in the appointment of any judge, he or she must also be involved in the possible removal of any judge because it relates – at least potentially – to the composition of that High Court.

This conclusion is bolstered by section 178(5) which states that when the JSC “considers any matter except the appointment of a judge”, it must sit without the members of the National Assembly and the NCOP.  This section explicitly excludes party politicians (with the exception of the Minister of Justice) from taking part in a decision on whether a judge should be impeached or not. Because the Constitution uses the very specific words – “appointment of a judge” – in this section, but the far broader phrase – “matters relating to a High Court” – when it deals with the presence of a premier, the irresistible inference must be drawn that Zille should have taken part in the JSC disciplinary committee decision of last week.

Of course there is a very good reasons why the members of Parliament are excluded from sitting on such a body. If the JSC recommends impeachment, the National Assembly will have to consider the JSC recommendation and a judge can only be impeached if two thirds of the members of the National Assembly vote for impeachment. If the politicians had been part of the original JSC decision, they would in effect be called upon to decide on the same issue twice in two different fora and that would not be tenable.

The Premier on the other hand will not form part of any decision by the National Assembly on whether to impeach a judge, so the same concern does not arise.

Moreover, the Minister of Justice does sit on the disciplinary committee of the JSC to represent the interests of  the national government. The premier’s position mirrors that of the Minister as he or she must represent the interests of the province in decisions regarding the composition of the High Court in his or her province.

The same section also requires the Judge President or his or her designate to sit in the decision, but as Hlophe is deeply involved in the case he would not be able to sit in the hearing. Neither would anyone appointed by him be able to take up his or her seat, because there would of course be a reasonable apprehension of bias against anyone nominated by Hlophe. Hlophe would surely not nominate anyone he believes would decide the case against him?

(Alternatively, the Deputy Judge President who has acted as Judge President in the absence of Hlophe should have sat on the committee.)

Andiswa Ndoni, one of the JSC members nominated by President Zuma, has previously said that she believed Hlophe was innocent, but unlike Dumisa Ntsebeza who to his credit recused himself, she failed to recuse herself from the JSC decision on Hlophe, despite the clear conflict of interest. Moreover, one of the representatives of the advocates profession, Izak Smuts, who was supposed to replace Milton Seligson, did not take part in the decision as President Zuma has not yet signed his letter of appointment.

It therefore seems to me that the true majority of a properly and lawfully constituted JSC body may very well come to a different conclusion from the irrational and dangerous decision announced last week. Hlophe and the judges of the Constitutional Court may therefore still face the cross examination required to test their evidence. After such cross-examination, the JSC might even be persuaded to do its job and to make a finding on the credibility of the various complainants. Once such a finding is made and one or the other version is accepted, it would require the JSC to recommend impeachment of the individual(s) who have lied through their teeth – under oath nogal.

This matter is not over yet. Who knows, maybe the tarnished credibility of the JSC can still be saved and with it the integrity and the independence of our judiciary.

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