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Hypocrisy rules again

I do not really want to pick a fight with Helen Zille because I do not have the time. But as she has now also attacked me because I criticised her actions around the appointment of the Erasmus Commission, I guess I’ll have to jump in.

When President Thabo Mbeki told religious leaders that they should “trust him” on Police Commissioner Jackie Selebi, he was rightly vilified in the media and by the Democratic Alliance (DA). Now it seems Zille, leader of the DA, is telling us we should “trust her” on the Spygate matter and should not complain when she impugns the integrity of a judge.

In response to my previous post criticising her response to the Erasmus Commission of Enquiry she argues:

  • that her name has already been cleared by a Commission appointed by her with terms of reference decided on by her and thus has nothing to hide;
  • people will appear before the Commission and will make scurrilous and untrue allegations that will damage her reputation and that of the DA;
  • and

  • that Judge Erasmus should never have accepted to chair the Commission because it is a political hatched job and she is therefore perfectly entitled to attack him personally.
  • First, it is true that a Commission headed by a senior advocate cleared Zille and the DA of wrongdoing. But the terms of reference of this Commission were decided on by Helen Zille herself, and she was thus cleared of what she knew beforehand she would be cleared. The terms of reference of the Erasmus Commission are much wider, and thus have the potential to uncover evidence of wrongdoing not covered by the Zille Commission.

    It might well be that even these wide terms of reference will not allow Judge Erasmus to make any adverse finding against the leader of the opposition or the party she heads. In that case she would have been truly exonerated by judge, and her name would really be cleared. But by pulling out all the stops to try and prevent this broader investigation, reasonable people without an axe to grind will inevitably become suspicious and will begin to wonder why we should trust Zille. When politicians ask us to trust them, I for one starts getting suspicious – but maybe that is just me.

    Second, in a Constitutional democracy that guarantees free speech, a politician cannot choose which allegations she wants to have aired and which ones not. As the Constitutional Court has said, the guarantee of freedom of expression means that we must allow almost all speech – even speech that might be untrue or scurrilous – because in the free marketplace of ideas the real truth will emerge eventually.

    Now Zille seems to suggest that she does not believe in freedom of expression because she does not trust the truth to come out in the end. She therefore argues we should stop a commission of inquiry because allegations might be made there that are untrue and damaging to her and the party. This is a deeply illiberal stance and flies in the face of the values espoused by the DA and Zille, and creates the impression of serious hypocrisy.

    Besides, to say that Mr Rasool might have a political axe to grind and might want to gain a political advantage out of this, and that the whole exercise is therefore illegitimate is also laughable – coming as it does from the DA. When the DA screams blue murder about allegations of corruption in the arms deal it does so knowing that it could gain a political advantage out of the matter. That does not make it illegitimate to ask for a commission of inquiry on the arms deal.

    Third, it is true that in South African Association of Personal Injury Lawyers v Heath the Constitutional Court said that given the principle of the separation of powers in our Constitution, a judge should not perform a task that is “incompatible with judicial office,” and that one of the factors that might be relevant in deciding whether the task is incompatible with judicial office would be whether it would “create the risk of judicial entanglement in matters of political controversy”.

    But the Court also said that judges can preside over commissions on inquiry because the performance of such a function “ordinarily calls for the qualities and skills required for the performance of judicial functions – independence, weighing-up of information, and giving a decision on the basis of a consideration of relevant information”.

    Here we have a commission set up in terms of Provincial Legislation to establish any wrongdoing by the City, which seems very close to the judicial function and therefore does not suggest an infringement of the principle of the separation of powers.

    However, if Zille believed that the Erasmus Commission infringed on the principle of separation of powers as set out in the Heath judgment, she would be free to challenge its legality in the Constitutional Court. But she has not done so – perhaps because she has been advised by senior lawyers that such a case has little chance of success? Instead she has chosen to launch a personal attack on a sitting judge not on the basis of any of his actions or decisions (which would have been legitimate) but based on his previous political affiliations (which is undermines one of the main pillars of our democracy).

    This personal attack is deeply irresponsible and flies in the face of existing precedent. The Constitutional Court has already found in the SARFU judgment that one should not assume that a judge would be biased merely because he or she belonged to a political party before his appointment. We all have a duty to uphold the independence of the judiciary and to respect the members of the judiciary, and we should not attack their integrity based on nothing more than their history. A judge does not stop being a judge merely because he sits as the head of a commission of inquiry, and to suggest that he does is to engage in mental gymnastics of the highest order.

    And once again this was done in a way that reeks of hypocrisy. When Judge Sisi Khampepe was appointed by President Thabo Mbeki to investigate issues around the Scorpions – a politically controversial subject if ever there was one – the DA did not complain or attack the judge for taking on the assignment, and it even launched an action to gain access to her final report.

    But now that another judge is appointed to head another commission dealing with politically less controversial matters such as lowly corruption in little Slaapstad, the judge is attacked personally, and in Orwellian manner accused of undermining the independence of the judiciary. This is rich, because, let’s face it, it is the statement by Zille – and not the actions of a judge acting in terms of legislation – that is undermining the independence of the judiciary.

    Hypocrisy of the highest order rules again.

    Author

    • Professor Pierre de Vos teaches constitutional law at the University of Western Cape. His writing has been published widely in both scholarly journals and in the popular press on a wide range of topics, including gay rights, the right to equality, social and economic rights, and affirmative action. Since October 2006 he also publishes a blog, Constitutionally Speaking.

    63 Comments

    1. Jon Jon 7 May 2008

      It’s naive to imagine that ANY judge should be above criticism. They are only judges, not saints and angels. If judges do stupid things, let’s call them stupid.

      And when a judge lends the authority of his silken position to running a kangaroo-court for the party he openly supports, he IS a stupid judge for doing so. A very stupid one. He has earned every scintilla of the derision he is getting.

      Dangerous precedent? What utter humbug! There’s no danger at all in calling judges to account when they make bad and stupid choices. Doesn’t matter who the judge is or what other parties might be involved.

      As for Prof De Vos — OF COURSE you’re going to stick to your point of view because for you to climb down from the stand you have taken would make you look even sillier than you’ve successfully done already.

      You’ve let yourself down badly here, Pierre.

    2. anton kleinschmidt anton kleinschmidt 7 May 2008

      @ Pierre

      The judge was most emphatically not attacked in his capacity as a “sitting judge”. He was criticised in his capacity as a chairman of an ANC appointed commission. Huge difference

      This preoccupation with the “sanctity” of the legal profession is getting to be a bit much. When a judge is acting in the capacity as a judge I will agree that he is entitled to the respect attendant on his position, provided that he acts with the requisite judicial dignity and discretion. When he acts in a non (quasi) judicial capacity then he must takes his lumps just like the rest of us. To try and infer some sort of godlike status is simply silly.

      Zille has not said that she is above the law. She is happy to submit to the COURTS as she has stated repeatedly. Furthermore the commission is not “legal process” because as you have said yourself it is “quasi” legal”.

      When I acted as a director I was carrying out my fiduciary responsibilties but if I made a mistake in any other capacity my role as a director did not entitle me to any special protection. In fact I was obliged to ensure good coduct in all my activities to protect my role as a director. I suppose you could call it exercising good JUDGEment.

      I happen to feel that this sets a valuable precedent because it will dissuade judges from becoming involved in politically explosive situations. This will ensure their judicial independence which is the whole point of the relevant Constitutional Court requirement.

    3. z z 7 May 2008

      Pierre

      This looks more like the article you probably should have written. A more balanced and to the point post.

      I can agree that she did not need to attack the judge directly in the manner she did, whether or not there is truth to it.

      I have an honest question:
      Does presiding over a non judicial commission which investigates allegations of criminal acts by a political party or high profile members of it, not create the risk of “judicial entanglement in matters of political controversy”?

      Notes on the question:
      Let’s say for arguments sake they uncover criminality and political plotting which eventually ends up in court. After all, the commission is investigating things they believe might be true, so if they end up being true then would the logical conclusion not be a court case against the guilty?

      Would the judge not then have to testify and so have judicially entangled himself in the whole debacle?

      Would the nature of the allegations not carry the risk of ending up of a political nature?

    4. Lyndall Beddy Lyndall Beddy 8 May 2008

      Pierre

      If Helen takes this to the Constitutional Court, which she may, and wins – you, as a lecturer in Constitutional Law, should loose your job.

    5. Pierre de Vos Pierre de Vos Post author | 8 May 2008

      The Commission of Enquiry was not appointed by the ANC but by Premier Ebrahim Rasool in terms of the Provincial Commissions Act 10 of 1998 in his capacity as Premier. If Judge Erasmus made a mistake in accepting to chair this Commission or if Mr Rasool exceeded his powers or if the Act is unconstitutional Mrs Zille should be free to say so and to give reasons for her argument, but of course it is ultimately for a Court to decide on these matters (I have never expressed a definitive opinion on any of these matter so will rather keep my job even if Rasool loses on any of these points). For me the main question is when and how should one criticise judges (because judges are NOT above criticism). I have written a more comprehensive piece about this question which will hopefully be posted on Thought Leader in the next day.

    6. z z 8 May 2008

      Pierre

      Unfortunately on my previous comment I did not realise that what you wrote was a response to Helen Zille, since it was not posted here but on your blog.

      Here is the link to Zille’s answer on Pierre’s blog for those interested: http://constitutionallyspeaking.co.za/?p=534

      Though I think your response would have been a better starting point, I see that you once again failed to answer her on a point for point basis. You did make many more accusations in this blog than merely the criticism of a judge and I believe you have failed to respond to them.

      Here are some of your other allegations:

      1. You have accused her of setting up a biased commission to clear herself. (yes it is directly implied)
      “Now Zille seems to suggest that she does not believe in freedom of expression because she does not trust the truth to come out in the end. She therefore argues we should stop a commission of inquiry because allegations might be made there that are untrue and damaging to her and the party. This is a deeply illiberal stance and flies in the face of the values espoused by the DA and Zille, and creates the impression of serious hypocrisy.”

      2. You have accused her of not believing in freedom of expression. Yes you did use the words “seems to suggest”, but they were merely used to inoculate yourself against this criticism as in the very next sentences you imply it to be true (“therefore”). At the very least she has said that it is untrue and therefore you should feel obligated to defend or revoke your “seems to suggest”.

      Will you respond to these and her other points?

    7. anton kleinschmidt anton kleinschmidt 8 May 2008

      @ Pierre

      “The Commission of Enquiry was not appointed by the ANC but by Premier Ebrahim Rasool in terms of the Provincial Commissions Act 10 of 1998 in his capacity as Premier.”

      Oh please!!!!!!!!!!!!!!!

      With regard to the right to criticise a judge, we will agree to differ

      With regard to another new blog on the subject….3rd time lucky?

    8. z z 8 May 2008

      I said:
      “I did not realise that what you wrote was a response to Helen Zille, since it was not posted here but on your blog.”

      Sorry Helen’s response was here, I missed it somehow. I duly apologise.

    9. Jon Jon 8 May 2008

      Zille COULD go to court to challenge Erasmus’s decision to chair the quasi-legal kangaroo court convened by Rasool under the Provincial Commissions Act 10 of 1998.

      Or she could save herself the time and money and just say “Stuff you. I’ll simply have nothing to do with this kangaroo court and the robed political lackey hired to give it a gloss of respectability.”

      That’s the sensible way to do it.

    10. Sonny Cox Sonny Cox 14 July 2008

      Pierre
      Hypocrisy rules again……..
      George Fivaz, who’s company investigated these ‘facts’ published an interesting article in the Sunday Times (13/07/2008)(page 19), Where he launches an attack on the Scorpions.
      One should just follow his track record to find that he was the worst commissioner of the SAPS second to Jackie Selebi, since 1913.
      He is now tauting Jacob Zuma for a job if/when he becomes president of SA.
      Fivaz was a run-away-come-back to the SAP. He wore two hats and could be regarded by some as a traitor of Apartheid, which he served loyally.
      He then refused to wear the SAP uniform post 1994 after becoming commissioner. What a hero, or fool!
      What about his investigations skills into RDP fraud, spying (I though only the NIA was licensed to do this), using Apartheid investigators in his company? Word has it that he could not take a proper statement…
      Then, recently he sacked half of his detectives and forced them to sign away their rights to compensation against him.
      He was also involved in the investigation into fraud in the Road Accident Fund. What was the results? Zero productive conclusions.
      He had to make use of a SAB official Maiya (the bee) Khan, who was replaced because of affirmative action in SAB.
      Oh, my point?
      Hypocrisy rules again…..

    11. amused reader amused reader 1 September 2008

      So the Pierre

      Helen was right all along, and you……

      The Erasmus commission was unconstitutional, Erasmus was wrong to accept the position as chair due to seperation of powers, much as Zille suggested, Rasool was acting out of political self interest, and the police acted illegally by giving evidence to Rasool.

      Helen Zille 1 Pierre VD Vos 0

      (Not that you’ll have the grace to admit it, you are just too ‘small’ for that).

    12. Jon Jon 1 September 2008

      Well, Pierre, the full bench verdict of the High Court striking down the politically-motivated Erasmus Commission as unconstitutional and unlawful also implies that Helen Zille was right and you were wrong.

      Can we expect an apology?

    13. Sonny Cox Sonny Cox 17 January 2009

      Yes Mr Vos,

      As my good old Daddy used to tell me.

      Politics stinks.

      Never trust a politician to ruin a country, they just do!

      A good example is Jacob Zuma.

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