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
30 January 2009

Yengeni, Winnie not eligible for Parly?

The preliminary list of ANC candidates for election to the National Assembly was leaked to the newspapers this week. Two of the names that appear very high up on that list are Winnie Madikizela-Mandela and Tony Yengeni. Questions are now asked about whether these stallwarts of the national democratic revolution are eligible for selection to the National Assembly at this time.

The answer obviously is that neither of them are.

Let’s leave aside for the moment the fact that ANC structures have nominated and have now shown enthusiastic support for two convicted criminals. In a normal society – a society in which criminals are shunned and vilified and not hero-worshipped, one in which a political party would be severely embarrassed if their members nominated two convicted criminals to represent them in one of our democratic institutions – there would have been an uproar about these names appearing so high up on the ANC nominations list.

But we are not a normal society. We are a deeply scarred and quite sick society. Just because we have enjoyed our democracy for 14 years does not wipe away the 300 years of colonialism and racist oppression which have scarred all of us living in South Africa – regardless of our race or sex.

There seems to be an acute distrust in state institutions (a distrust exploited by shady politicians like Yengeni, embattled, ethically challenged, politicians like Zuma and morally depraved sportsmen like Hansie Cronje) and a very strong “them” and “us” kind of mentality based on a perhaps understandable but warped kind of racial solidarity. Most South Africans seem to think like George Bush (if think is not too strong a word to be used in the same sentence as George Bush): “You are either with us or against us and if you are with us then it does not matter what you might have done”.

It is a sick mentality that says: Hey, who cares if you had tortured a few people or stole the odd R500 000 – as long as you support the war on terror or can show that the other side hates you, you are my friend and hero. Who cares if you are a crook, as long as you are vilified by elites, we will support you because at least you are “our” crook.

But nevertheless, I think it is pretty clear that the Constitution prohibits both Yengeni and Winnie Madikizela-Mandela from standing for election to the National Assembly. This is because section 47(1)(e) of the Constitution states that every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except (amongst others):

anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.

Yengeni was sentenced to four years in prison without the option of a fine and Winnie to five years in prison without the option of a fine – although her sentence was converted into a suspended sentence on appeal. I think few people will argue that Yengeni could qualify for election, as he actually served time in prison. But what about Mrs Madikizela-Mandela?

It seems pretty straight forward to me that she is not elligible. After all, although Mrs Madikizela-Mandela had never served any time in prison, she was sentenced to a prison term without the option of a fine. This prison sentence might have been suspended but it was a prison sentence and she had not choice to rather pay a fine than live under the cloud of this suspended sentence.

For those people who believe we can interpret the Constitution by looking at the plain language of the text, there would be no way to argue that Winnie is eligible as she was not given the option between a prison sentence or a fine. She was sentenced to time in prison – the judge just happened to be lenient and suspended this sentence for whatever reason.

For those who think we should read the Constitution contextually and purposefully, this should also be a no-brainer. What was the reason for including this section in the Constitution? The framers clearly wanted to make sure that recently convicted crooks are prevented from representing us in Parliament while not preventing individuals who might have been caught doing something stupid but illegal (like shop lifting a can of Coke or pouring tea over the editor of Huisgenoot) from serving the nation.

Courts do not as a general rule impose prison sentences without the option of a fine for trivial criminal acts. (When they do, it is usually because some retarded racist magistrate has not received the memo yet that we live in a democracy where we are all equal.)  But usually courts reserve this sentence for serious criminality – as they should. Sometimes there are mitigating circumstances in such serious cases and then a court can suspend the prison sentence but it does not make the crime that was committed less serious.

If we therefore look at the purpose of this provision in the Constitution it was exactly to keep people like Mr Yengeni and Mrs Madikizela-Mandela out of our Parliament – at least for a certain period. One would not want them to defraud the taxpayers by cheating with their travel vouchers, for example.  

So, unfortunately Mr yengeni and Mrs Madikizela-mandela will ahve to serve the national democratic revolution in another capacity. As style consultants to the rich donors of the ANC maybe?

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