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
26 June 2008

Zuma’s latest application dead in the water?

The application by Mr Jacob Zuma to declare unconstitutional the bringing of charges against him by Vusi Pikoli and to have this decision set aside is dead in the water. After wading through the Zuma affidavit this morning it is clear to me that this application is yet another stalling tactic by Mr Zuma and his lawyers to ensure he never gets his day in court.

As some readers have pointed out in the comments section of this Blog, the application is based on section 179(5)(d) and section 22(2) of the National Prosecuting Authority Act which states that the National Director “may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from….. the accused person; the complainant; and any other person or party whom the National Director considers to be relevant”.

Zuma’s lawyers argue that when charges were instituted against Zuma, he should have been afforded a hearing because this was a “review” of the previous decision by Bulelani Ngcuka not to charge him. But this is not the case because the “review” spoken about in section 179(5) of the Constitution is – as others have pointed out – a review of a decision by one of the provincial Directors of Public Prosecution.

This is very clear if one reads section 195 holistically and in context. This section was included in the Constitution because of concerns by the ANC about the powers of provincial Attorney Generals in the previous prosecutorial dispensation. These provincial Attorney Generals had a final say on who to charge and who not to charge in their jurisdictions and the ANC was not happy with the way some of these AG’s execercised their powers. They were seen as far too independent and far too reactionary.

That is why the ANC insisted (correctly, I think) on creating a National Prosecuting Authority with a National Director who could issue policy directives that would bind the provincial directors of public prosecution. This is also why the Constitution explicitly states that the National Director can intervene when these policy directives are not complied with. The ANC felt that the AG’s had far too much power and this was a way to nip their independence in the bud.

But what is intriguing about the latest application by Zuma is that it comes closest to pointing the finger at President Thabo Mbeki for orchestrating the prosecution of Zuma. Most of the application is about politics and not about law. It hints that Mbeki influenced the decision to prosecute Zuma because he and Pikoli went on a trip to Chile shortly before Zuma was fired. The application points out that Mr Zuma was only charged after he was fired as Deputy President, but that the President mentioned in his speech before Parliament when he fired Zuma that he was sure Mr Zuma will get his day in court.

This argument might have some political traction, but it will not be of any legal use to Zuma.

Mr Zuma’s supporters could point out that President Mbeki had just re-appointed Mr Jackie Selebi as police commissioner for another year despite the fact that he is being charged with corruption. Mbeki’s spokesperson said that this was done because due process of law must be respected. This is of course a rubbish argument. Mr Selebi’s contract had come to an end and there was no legal requirement to reappoint him. The decision to do so was a political one – born out of Mbeki’s stubbornness and his belief that he and he alone knows best.

Mr Zuma’s supporters would of course also point out that the same consideration for the due process of law was not given to Zuma who was fired even before he was charged with any crime. It does show up a spectacular double standard on the part of President Mbeki.

The difference is of course that President Mbeki wanted to get rid of Zuma, while he has no intention of getting rid of Selebi, perhaps because they are old friends and perhaps because Selebi is not a political rival of Mbeki.

In retrospect it is clear that President Mbeki badly miscalculated in his political handling of the case against Zuma and that by firing Zuma he started the fightback campaign that has now culminated in the election of Zuma as ANC President. South Africans just love a victim and Zuma can play the victim better than almost anyone else. President Mbeki created Zuma’s Presidential bid by allowing Zuma to paint himself as the victim of a political conspiracy.

If Mbeki did indeed have a hand in the decision, first not to prosecute Zuma and then, second – when Zuma did not want to go quietly – to prosecute him, it would have been highly irregular. There is of course no actual proof of this although it is an article of faith for most Zumaists. Ironically, if this was indeed the case, Mbeki’s big tactical mistake was that he was not ruthless enough and did not put pressure on the NPA to prosecute Zuma along with Shaik – which really they had a legal obligation to do.

Ironically, by treating Zuma with kid gloves and by deciding not to prosecute him merely because he was a struggle icon, Ngcuka (or was it Mbeki?) created the “victim” of the “conspiracy”. If Mr Zuma had not been given special treatment and if he was prosecuted with Shaik, Mr Mbeki would probably still be leader of the ANC today.

So I am not very sympathetic with those who argue Mr Zuma is the victim of a political conspiracy. If there was indeed a political conspiracy it helped him to get elected President of the ANC. Without this so called conspiracy, Zuma would never have been so popular and would never have been elected President of the ANC.

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