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
14 October 2007

Your days are numbered, Mr President

Journalists seem hardwired to exaggerate threats to press freedom and they are not averse to making themselves the hero of their own stories either. I was therefore rather sceptical when I first read the lead story in the Sunday Times this morning.

The story claims that its editor, Mondli Makanya, and its deputy managing editor, Jocelyn Maker, are going to be arrested because of the possession of the health records of Dr Beetroot, Manto Tshabalala-Msimang. Inside the paper Justice Malala turns up the heat even further, arguing that President Mbeki is a liar and that he and his acolytes are raping South Africa.  

Aren’t they being a bit hysterical just because one two of their own are going to be arrested for breaking the law? Surely they do not think they are above the law like Jackie Selebi? And surely the clause in the National Health Act that prohibits the possession of a person’s health records is so overbroad and so vague that it will most probably be found to be unconstitutional if challenged.?

And yet in the present climate – what with Vusi Pikoli and Nozizwe Madladla-Routledge fired and Jackie Selebi sitting pretty – it is not so easy to dismiss the people at the Sunday Times as hysterical or paranoid. The fact that a very senior police inspector was apparently asked to investigate the Sunday Times while thousands of murders and rapes go unsolved seems at best like a scandalous misdirection of resources.

But if it is true – as the Sunday Times story suggests – that important people in Pretoria (Jackie Selebi?) placed pressure on the police to deal more swiftly with this matter, then a clear pattern seems to be emerging: cross the President or his allies and the state institutions will be used and abused relentlessly to cut you down to size. Suddenly all those paranoid allegations by Jacob Zuma supporters seems rather credible.

This is deeply troubling for at least two reasons.

First, if true it would conform that the President is prepared to do anything to get his way – even if that means using his influence with those cadres deployed by the ANC to positions in independent institutions to pursue his enemies. It suggests that our President is ruthless and that he does not respect the constitutional and legal boundaries that should exist between him and those in charge of other state institutions.

Secondly, it must make us wonder what happens if the President abuses his power in the way alleged? Where does that leave our constitutional democracy, our independent courts, our institutions that have to safeguard democracy. If the President gets away with the firing of Pikoli and the persecution of the Sunday Times, will people in future be brave enough to stand up to him? Will we have more Vusi Pikoli’s or will we all cower and cringe and say nothing?

This is where I am an optimist. Unlike Justice Malala, I do not see a society meekly going along while President Mbeki does a Vladimir Putin on us and steal our democracy from under our noses. There are powerful voices in the print and electronic media and powerful civil society organs that will resist any moves to take away our democracy.

There are of course the traditional bootlickers like Christine Quanta or Essop Pahad that would claim the earth is flat if the President says so, but by and large we are not a passive nation. Yes, when a issue is racialised we tend to hunker down with our own kind, but President Mbeki’s weird and paranoid behaviour crosses all boundaries and must be upsetting to all but the most sycophantic ANC supporters.

That is why we should watch out for the Mbeki arse-lickers in the next few days because surely they will try and racialise the criticism of Mbeki. But I do not think it will work – just as the attempt to racialise the Treatment Action Campaigns fight for ARV’s could not be racialised. Watch out Mbeki, South Africans are not stupid and they like democracy too much.

Surely, your days must be numbered, Mr President?

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