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
23 July 2009

Who will be our next Chief Justice?

In the near future President Jacob Zuma will probably appoint Justice Sandile Ngcobo as our new Chief Justice. I have a high regard for Justice Ngcobo. Whether one agrees with him or not, his dissenting judgment in the Prince case (dealing with the religious freedom of a Rastafarian to use cannabis) is a work of great beauty.  And every time I read the Hoffmann judgment, in which Justice Ngcobo declared that it constituted unfair discrimination on the part of South African Airways to discriminate against Mr Hoffmann on the basis of his HIV status, I feel proud to be a South African. When I get to the following passage I inevitably get a lump in my throat:

In view of the prevailing prejudice against HIV positive people, any discrimination against them can, to my mind, be interpreted as a fresh instance of stigmatisation and I consider this to be an assault on their dignity. The impact of discrimination on HIV positive people is devastating. It is even more so when it occurs in the context of employment. It denies them the right to earn a living. For this reason, they enjoy special protection in our law.

The appointment of Justice Ncobo will also come as a relief to those of us who think that Judge President John Hlophe is not fit to be on the bench – let alone to be appointed Chief Justice – because of his propensity to tell untruths, his numerous actions which appears ethically problematic and his undignified and un-judicial display of ambition.

However, it seems sad and a little bit worrying that an equally worthy – and more senior – candidate, Deputy Chief Justice Dikgang Moseneke, will probably be overlooked because of a completely innocuous remark he made at his birthday party when he said: “I chose this job very carefully. I have another 10 to 12 years on the bench and I want to use my energy to help create an equal society. It’s not what the ANC wants or what the delegates want; it is about what is good for our people”.

In private discussions the conspiracy theorists sometimes also note that Moseneke – who was sent to Robben Island at the age of 16 – might lose out because he was Deputy President of the PAC and from Sotho origin, while Ngcobo’s home language is Zulu, but I can’t imagine that the non-racial ANC who vehemently opposes tribalism will take such things into consideration.

For me the issue is one of principle, not of personalities. Given the fact that South Africa’s Constitution creates the position of Deputy Chief Justice, it seems appropriate to appoint the Deputy Chief Justice as Chief Justice when that position opens up because he or she would be the most senior judge and “next in line” so to speak. Establishing such a practice might also safeguard against the perception that the most pliant and trusted judge would be appointed to the top job by the President of the day and might help to prevent the overt politicisation of the judiciary.

Although judges will not be swayed by such considerations, respect for the judiciary (and the Chief Justice) does not only depend on the actual ability and willingness of judges always to act without fear, favour or prejudice but also on the perception created in the minds of the public that they will do so. Where a practice is established to appoint not the most senior judge to the position of Chief Justice, ordinary citizens will wonder why the next in line was overlooked and why another candidate was chosen and might well think that naked politics played a role in such a decision. This will not instill and further entrench respect for our judiciary.

In any case, the appointment of Justice Ngcobo will be good news for those  who champion the rights of accused persons. In the Zuma case justice Ngcobo displayed a very progressive view of criminal procedure rights – a view not shared by most judges or ordinary citizens in South Africa who seem – like me – to be a little less bleeding heart progressive on this issue than those who believe the criminal justice system should bend over backwards to safeguard the rights of accused persons (often wrongly called “criminals” by politicians) in order to secure their right to a fair trial.

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