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 May 2008

Zuma prosecution a conspiracy after all?

Supporters of Mr Jacob Zuma who have long held that the Scorpions and the National Prosecuting Authority (NPA) have been used to “frame” their man, received another boost late last week when the Mail & Guardian reported that Justice Minster, Brigitte Mabandla, had “ordered” Vusi Pikoli, now suspended National Director of the NPA, to stop the criminal investigation into Police Chief, Jackie Selebi.

According to the report in the newspaper Mabandla had written to Pikoli about the Selebi investigation a few days before Pikoli was suspended:

“Until I’m satisfied that it’s in the public interest, you will stop,” Brigitte Mabandla wrote, according to a source close to former speaker of Parliament Frene Ginwala’s inquiry into Pikoli’s fitness to hold office. Pikoli refused and wrote back to Mabandla that she might be guilty of obstructing justice. He was suspended by Mbeki four days later.

If this is true, the Minister was clearly abusing her power and trying to Act outside the four corners of the Act by ordering that which the Constitution and the law does not allow her to order. While the Minister must approve any prosecuting policies of the NPA, she has no power to interfere with decisions by the NPA to investigate or prosecute any individual cases.

This is because section 179(4) of the Constitution states that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice” and because this is exactly what the NPA Act does.

If Minister Mabandla gave such an instruction, it would be highly irregular and illegal and would, in the normal course of events, require her to be fired from the cabinet. Of course, this would never happen. This is because only fools and sycophants would argue that such a purported “instruction” – if it was given – was not first cleared or at least discussed with the President of our country.

The President can hardly fire the poor woman for merely trying to do what he wanted or instructed her to do. If we had a well functioning democracy with evenly matched political parties and an electorate that voted for political parties based on performance and their respect for the law, such a revelation could well bring down the government.

In South Africa it will only lead to more suspicion about the ways in which the President – through his Minister of Justice or on his own – had in the past interfered or tried to interfere with decisions of the NPA. If the Minister (and the President) thought that it was in order to give such an illegal instruction, what other instructions were given in the past to protect political allies and friends and persecute enemies?

If I was a Jacob Zuma supporter I would point to this alleged letter as proof of the attitude of the government towards the NPA and would ask a few pertinent questions. If such a letter was issued in the case of Jackie Selebi, why not in the case of Jacob Zuma? If the government thought it could instruct the NPA like this, did it perhaps instruct the NPA to go after Zuma while not going after others implicated in the arms deal scandal?

We will have to see what emerges at the Ginwala Enquiry, but it sure looks as if the President and his Minister of Justice had a very strange idea about the meaning of section 179(4) of the Constitution and the relevant sections of the NPA Act that guarantees the independence of the NPA to make decisions on the investigation and prosecution of individual cases.

It also suggests that the ANC was perhaps barking up the wrong tree when it decided at their Polokwane conference to disband the Scorpions. If they wanted to stop the Scorpions from investigating ANC bigwigs, they might have started by looking at the role the Minister of Justice and the President might have played in decisions by the Scorpions to go after some ANC leaders while leaving others alone.

But maybe the situation is a bit more complex and maybe the NPA had stopped taking orders from Mbeki and his Minister or had at least started resisting the illegal and unconstitutional interference of the Ngcuka era?

While Bulelani Ngcuka clearly had a far too close and therefore constitutionally and legally inappropriate relationship with the previous Minister of Justice (what on earth was the Minister doing at a plea bargain meeting between Ngcuka and Tony Yengeni – was he out of his mind?), Vusi Pikoli (who is more of a technocrat than an out-and-out politician) might have started to put some distance between the NPA and the government to comply with the Constitution and the law.

This recalls the statement made by an apartheid era Minister of Justice who complained once that the problem with judges were that once selected onto the bench they thought they were there on merit and had a bad habit of starting to think for themselves. Something to do with the legal training perhaps.

This would however not have affected the decision by the NPA to investigate and then to prosecute Mr Zuma and he may well rightly feel hard done by. But this victimhood is somewhat artificial because if he had nothing to be ashamed of, there could not have been any investigation to begin with. Such a pity then, that Mr Zuma has still not explained why he had taken all that money from a convicted fraudster and then did all those favours for him and why he had met with an arms company whom the highest court of the land had confirmed had paid a bribe to him.

If only he could charm us into forgetting about these findings made by the High Court and the Supreme Court of Appeal in the Schabir Shaik case, we might even begin to like (and, dare I say, trust) our President to be. One thing is for certain, I have long ago stopped trusting our incumbent President as he has shown a remarkable lack of fidelity to the truth.

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