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
8 November 2007

Zuma’s lawyers clutching at straws?

Today was not a good day for Jacob Zuma and his legal team in their long, relentless and very costly battle with the National Prosecuting Authority. At the same time the State is one step closer to being able to make use of potentially damning documents in the event of Mr. Zuma being charged with fraud and corruption.

The Supreme Court of Appeal (SCA) handed down several judgments today in which it confirmed the legality of the searches and seizures of Jacob Zuma’s various premises as well as the search and seizure at his lawyer, Michael Hulley’s, office. It also confirmed the legality of the request to the Mauritian authorities to hand over the original diary of Allan Thetard in which it is shown this arms deal employer met with Mr Zuma and Schabir Shaik shortly before the payment of the R500 000 “bribe”.

But this is not the end of the road in this saga because Zuma’s lawyer has already indicated that they will appeal to the Constitutional Court.

Mr. Zuma and his team cannot challenge the constitutionality of the provisions of the NPA Act under which the warrants were issued, because the Constitutional Court has already confirmed that these provisions are constitutional. This means they will have to convince the Constitutional Court that the warrants allowing the searches and seizures were too vague and that these vague warrants in some way infringed on Mr. Zuma’s right to privacy.

The NPA Act which allows for searches and seizures explicitly acknowledges the privacy interest and states that where premises are entered and searched in terms of the Act, such a search must be conducted “with strict regard to decency and order, including… a person’s right to, respect for and the protection of his or her dignity;… and … the right of a person to his or her personal privacy”

But the argument of Mr. Zuma’s lawyers will not be that the searches itself was conducted in a way that infringed his privacy. Instead, they will have to make the more difficult argument that vague search warrants which fail to tell the affected person exactly why the search is being held, constitute an infringement of the privacy right.

I am not an expert on procedural law but it strikes me as a difficult constitutional argument to have to make and I will not be surprised if the Constitutional Court also finds against Mr Zuma. There are three reasons for this view.

First, the Constitutional Court has often argued that the privacy right is a layered right requiring more protection the closer to the private core of a person’s affairs one gets and less protection as one moves out into the world. The financial documents of a politician, say, might be less worthy of protection than his personal love letters.

Second, the link between the right to privacy and the vagueness of a search warrant is not that obvious. The argument would be that if a person’s privacy is going to be infringed, that person has a right to know exactly why. But if the search warrant was otherwise in order, the fact that the warrant was vague does not seem to constitute a particularly severe infringement of the privacy right.

Lastly, one might well argue that the infringement of the right in such a case is justifiable in an open and democratic society exactly because the infringement is not severe, because other safeguards exists to protect the accused person’s interests and because the accused may easily find out why the search warrant was issued with reference to the documentation submitted to obtain the warrant. 

In the present case Mr Zuma’s lawyers did not argue that they had no idea and could not know why his premises were being searched. All they argued was that it was not obvious from the wording of the warrant itself, why the premises were searched. If warrants always had to say exactly why they were issued in precise detail, many warrants would be challenged and thrown out and the already wobbly criminal justice system would be further eroded.

In any case these are all technical points. The interesting political question is why Mr Zuma’s legal tactics have not backfired on him and why few people have been asking why he is so anxious to keep documents out of the hands of prosecutors. Surely it suggests that he has much to hide? But to argue like that requires a moral compass which seems sorely missing in the discourse around the succession debate.

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