Download Nemo Iudex & Audi Alteram Partem in Public Sector: State of Capture Report Case Study, Sou and more Study notes Decision Making in PDF only on Docsity!
The 5th Annual International Conference on Public Administration and Development Alternatives 07 - 09 October 2020, Virtual Conference
The Nemo Iudex in Causa Sua and Audi Alteram Partem:
Lessons from State of Capture Report for
Public Sector Officials
P Hlongwane
University of South Africa, South Africa
Abstract : The basic administrative principles of nemo iudex in causa sua and audi alteram partem are impor- tant for attaining justice in public administration particularly as they relate to decision-making authority. By the way, the nemo iudex in causa sua and audi alteram partem are Latin maxims, of which the former simply means that no person must exercise decision-making power or judgement in his or her own matter whereas the latter suggest the right to be heard. Therefore, the primary aim of this paper is to discuss the extent to which the abovementioned principles were applied in the state of capture report compiled by the former Public Protector, Advocate Thuli Madonsela. Further, this discussion extends to the assessment of the four tests used to determine possible biasness in decision making, namely: prejudice, personal interest, pecuniary interest, and subjective bias. This paper argues that the former Public Protector acted judiciously when she recommended that the selection of a judge to preside over a commission of inquiry into state capture ought to be conducted by a chief justice. In this regard, evidence suggest that the former Public Protector complied with basic procedural requirements when applying the nemo iudex in causa sua whereby the former state president, Mr Jacob Zuma, was advised to recuse himself from exercising his presidential prerogative of selecting a judge to head the aforementioned commission into state capture. Indeed, it is clear that the former state president was conflicted due to personal interest and could not pass a subjective bias test. This paper concludes that the public sector officials as well as political office bearers should be circumspect and consistent in applying the nemo iudex in causa sua principle pertaining to decision making, which implies that the audi alteram parterm principle needs to be considered in order to advance administrative justice in the public sector. Keywords : Audi alteram partem, Nemo iudex in causa sua, Personal interest, Subjective interest
1. Introduction
In 2016, the former Public Protector, Advocate Thuli Madonsela released a State of Capture Report in relation to an "investigation into complaints of alleged improper and unethical conduct by the state president and other state functionaries relating to alleged improper relationships and involvement of the Gupta family in the removal and appointment of ministers and Directors of State Owned Entities (SOEs) resulting in improper and possibly corrupt award of state contracts and benefits to the Gupta family's businesses" (Public Protector South Africa, 2016:4). The Office of the Public Protector applied two fundamental principles (nemo iudex in causa sua and audi alteram partem) in its interaction with the former president, Mr Jacob Zuma, particularly as they relate to advancing justice in decision making. The two Latin maxims have two different meanings but they are not mutually exclusive. In this sense, any of the two principles can be understood and applied appropriately if both precepts are inter- preted in relation to one another. While the nemo iudex in causa sua suggests that "no man shall be judge in his own cause" (Zubair & Khattak, 2014:68), the audi alteram partem denotes that "no man should be condemned unheard" (Sarmah, 2014). Following these, it is clear that according to the former, a person in a position of authority to make decisions must not be biased or appear to be par- tial whereas the latter indicates that the deciding authority should be prepared to hear both sides of a matter prior to taking a decision. Subsequent to the investigation, the Office of the Public Protector made the following recommen- dations: firstly, the former state president was required to appoint a commission of inquiry led by a competent judge selected by Chief Justice whose name had to be submitted to the president within 30 days. Secondly, the commission had to be suf- ficiently resourced and the appointed judge would
P Hlongwane have a prerogative to appoint his/her own team in order to pursue further investigation into alleged state of capture. Thirdly, the commission would be anticipated to complete its investigative tasks and present a report outlining the findings and recom- mendations to the state president within a period of 180 days. Subsequent to receipt of the report, the state president would be expected to submit a copy to parliament and explain how the recommen- dations were going to be implemented, thus, within 14 days of the release of the commission's report (Public Protector South Africa, 2016). However, the former president, Mr Jacob Zuma, challenged these recommendations by lodging an application with the High Court in Pretoria in order to have remedial actions reviewed and set aside. In fact, Mr Jacob Zuma was of a view that the public pro- tector had no authority to instruct him to appoint a commission of inquiry or to determine the nature of matters to be investigated by the commission and set the timelines for reporting (Wolf, 2017). According to Mabuza (2017), Mr Jacob Zuma relied on Section 84(2)(f) of the Constitution which states that the president is responsible for "appointing commissions of inquiry." Therefore, the aim of this paper is to discuss the extent to which the nemo iudex in causa sua and audi alteram partem prin- ciples were applied in the state of capture report compiled by the former Public Protector, Advocate Thuli Madonsela. This paper focusses on the assess- ment of the four tests used to determine possible biasness in decision making, namely: prejudice, per- sonal interest, pecuniary interest, and subjective bias, a nuanced discussion on the requirements or preconditions for the audi alteram partem prin- ciple as well as exceptions to the same principle, a detailed discussion on how the aforementioned common law principles were applied by the former public protector in the State of Capture Report. The paper also demonstrates that public officials ought to learn to recuse themselves when conflict of inter- est in decision-making is evident and unavoidable.
2. Nemo Iudex in Causa Sua The nemo iudex in causa sua principle teaches that a decision-maker has to be disinterested and not biased (Chew, 2016). In support of this view, Wolf (2017:23) states that "the nemo iudex in sua causa applies not only to the administration of justice involving decisions taken by prosecutors and judges, but extends to a variety of less obvious forms of impartiality to secure good administration."
2.1 Important Principles for Testing Biasness
There are at least four tests which decision makers need to pass in order to ensure that decisions made do not cast doubt regarding their validity. At the same time, unbiased decision maker indicates that justice will not only be served but will be seen to be done appropriately. Some of the important princi- ples for testing biasness are discussed below.
2.1.1 Pecuniary Interest
In order to test a degree of biasness, there is a need to determine a decision maker has pecuniary interest in the matter under consideration. In fact, Roux, Brynard, Botes and Fourie (1997) argue that whenever a decision maker has financial interest in the matter, it is appropriate to make a declaration thereof followed by recusal from decision-making processes by parties concerned. In other words, any person who has financial interest in relation to the matters under consideration should avoid participating in decision-making process. Zubair and Khattak (2014) opine that the existence of financial interest in relation to the matter under consider- ation is adequate to disqualify a decision maker.
2.1.2 Personal Interest
Personal bias emanates from "personal relation of friendship or animosity or profession" in which case a decision maker's judgement could be highly influenced by whether or not he or she likes the other person who may be affected by the decision (Zubair & Khattak, 2014). It may happen that a gov- ernment official may have personal interest instead of financial interest in the matter, which may require such an official to withdraw from decision-making process (Roux et al ., 1997). For instance, if a prose- cutor has a son who is involved in criminal case in which he has to prosecute, he would have personal interest in the case and therefore, it would be ideal to withdraw from the case.
2.1.3 Subjective Bias
Subjective bias may arise when an individual in deci- sion-making position has had unsavoury experience with people in their private interactions (Roux et al ., 1997). This suggests that previous unpleasant inter- actions may tend to influence the decision maker to arrive at an unfavourable decision against the other people. In O'Brien's (2011:29) view, "the rule against bias was originally founded on a principle of fairness and accuracy in decision making, but it is now founded on the idea that to allow a biased
P Hlongwane all wild animals! You will crawl on your belly and you will eat dust all the days of your life. And I will put enmity between you and the woman, and between your offspring and hers; he will crush your head, and you will strike his heel." To the woman he said, "I will make your pains in childbearing very severe; with painful labor you will give birth to children. Your desire will be for your husband, and he will rule over you." To Adam he said, "Because you listened to your wife and ate fruit from the tree about which I commanded you, 'You must not eat from it,' "Cursed is the ground because of you; through painful toil you will eat food from it all the days of your life. It will produce thorns and thistles for you, and you will eat the plants of the field. By the sweat of your brow you will eat your food until you return to the ground, since from it you were taken; for dust you are and to dust you will return." The above text shows that it is fair to grant a person an opportunity to put forward any mitigating factors prior to condemnation. Further, the text indicates that justice would be incomplete and punishment would be unfair without hearing the other party's case. Roux et al. (1997) point out that the individuals whose rights, privileges and freedoms are bound to be encroached upon in the process of exercising dis- cretion in administrative action ought to be afforded a chance to state their cases. Failure to exercise this important precautionary measure in decision- making would constitute a travesty of justice. Sahu (2015) adds that natural justice principles become more relevant in case of administrative actions that are quasi-judicial. In other words, the aforemen- tioned principles are important in instances where individual rights, liberties, and privileges are likely to be affected by administrative actions.
3.1 Requirements for Audi Alteram Partem
There are, nevertheless, some preconditions that have to be met before individuals could be called upon to state their side of the story. The two prominent issues that have to be considered are explained below.
3.1.1 Prior Notice of Action
All individuals who are required to appear before any board or person of authority have to be given prior notice (Roux et al ., 1997). In other words, all the parties concerned have to be informed time- ously about the date, time and place of the intended hearing. Equally important, those individuals who are affected must know the purpose of the intended hearing in order to allow the other party ample time to prepare. Moreover, the prior notice has to be reasonable under the circumstances. According to Manyika (2016), reasonable notice can only be con- sidered to be fair if affected individuals are granted sufficient notice, reasonable time to respond, unambiguous statement of administrative action and notification of individuals' rights to review any action or decision. In support of this view, section 3(2) of the Promotion of Administrative Justice Act 3 of 2000 categorically states that any individual who is materially and adversely affected by an administrative action has to be granted "adequate notice of the nature and purpose of the proposed administrative action; a reasonable opportunity to make representations; a clear statement of the administrative action; and adequate notice to any right of review or internal appeal, where applicable" (Republic of South Africa, 2000:4). In Sahu's (2015) analysis, individual rights are considered to be adversely affected if an administrative action places a burden on a person upon whom such decision has some negative ramifications, in which case written justifications have to be provided. This explain that the issue of prior notice is not an intricate process but arduous.
3.1.2 Opportunity to be Heard
Granting another party an opportunity to be heard constitutes an integral part of the audi alteram partem. In this regard, Zubair and Khattak (2014) argue that the opportunity to be heard does not only suggest granting another person a chance to speak before a decision maker but extends to affording another person a reasonable opportunity commu- nicate a response to the decision maker orally or through written representations. Some decision makers default these important principles when a need to make a critical decision arises. For instance, in Opperman v CCMA and Others the Labour Court found the plaintiff was not given sufficient oppor- tunity to make submissions regarding the sanction imposed. For this reason, the Court made adverse findings against the arbitrator and the employer. This case shows that individuals have to be granted an opportunity to be heard when an administrative action or decision that affects them is imminent.
3.2 Exceptions to the Audi Alteram Partem
There are exceptional instances where an opportu- nity to a fair hearing may not be afforded and still
The Nemo Iudex in Causa Sua and Audi Alteram Partem: Lessons from State of Capture Report for Public Sector Officials no unfairness could be inferred. Those instances are discussed briefly below.
3.2.1 Legislative Function
A right to a hearing can be excluded if an admin- istrative action appears to be as consequence of legislative function. Specifically, this may arise in instances where a legislation is silent about the application of natural justice in dealing with issues that are addressed in the legislation (Dhanapalan, 2018). For instance, in South Africa, there is no legal provision for consulting with prisoners if the parole conditions have to be altered. According to Sarmah (2014), the legislative actions are not subject to the principle of natural justice because the principle sets the standards without any reference to specific persons.
3.2.2 Emergency
Dhanapalan (2018) highlights that in case of emer- gency, there may not be sufficient time to have public hearings to obtain the views of the citizenry regarding a situation but the state institutions would have to take decisive action. In such cases, it means that the right to be heard falls away. An example in this regard, would be an announcement of Covid- 19 lockdown by the South African state President. Due to an urgent need to make pronouncements concerning the direction which the South African government had to take in March 2020, there was no need to engage in public hearings about whether or not lockdown should be introduced. In support of the views expressed above, Sarmah (2014) states that "in cases of extreme urgency, where interest of public would be jeopadised by the delay or publicity involved in a hearing, a hear- ing before condemnation would not be required by natural justice or in exceptional cases of emer- gency where prompt action, preventive or remedial, is needed, the requirement of notice and hearing may be obviated."
3.2.3 Impracticability
Natural justice can only be applied and adhered to when it is feasible to do such (Sarmah, 2014). In this sense, the audi alteram partem principle may not be applied when it is evident that it would be impractical to pursue such exercise. If a situation arises where a natural person or juristic person challenges an administrative decision on the basis that no hearing was held prior to decision making, a court or an adjudicating authority may rely on "impracticability."
4. The Application of the Nemo Iudex in Causa Sua and Audi Alteram Partem in the State of Capture Report The investigation into the state of capture by the former Public Protector, Advocate Thuli Madonsela, began with prior notice to former State President, Mr Jacob Zuma pertaining to the allegations reported against him (Public Protector South Africa, 2016). On the 22 of March 2016, the former Public Protector, Advocate Thuli Madonsela wrote to the former President of the Republic of South Africa, Mr Jabob Zuma, regarding the allegations of violating the Executive Members' Code of Ethics. The corre- spondence to the former President was part of an investigation into allegations that Mr Jacob Zuma had connived with the members of the Gupta family in the offering of ministerial positions. For these reasons, Advocate Thuli Madonsela requested Mr Jacob Zuma to respond to the allegations (Public Protector South Africa, 2016). Subsequently, the Public Protector took decisive steps to investigate the allegations in tandem with the provisions of section 182 subsection 1 paragraph a, b and c of the Constitution (1996) which states succinctly that the Public Protector has the powers to conduct an investigative inquiry into any alleged unlawful or unethical conduct within the realm of public admin- istration or government affairs, followed by a report on such investigations wherein remedial actions are well-articulated (Republic of South Africa, 1996). Indeed, the Public Protector acted within the param- eters of the law and observing the rights of the former State President, Mr Jacob Zuma in the per- formance of her responsibilities and duties. It appears that Advocate Thuli Madonsela afforded the former President sufficient time to attend to the allegations that were levelled against him. However, there was no response from Mr Jacob Zuma in relation to the allegations. In support of these assertions, Advocate Madonsela mentions: On 13 September 2016 I sent another letter to the President asking for a meeting with him in order to brief him on the investigation and affording him a further opportunity to comment on the allega- tions, which were summarised to the effect that the President ought to have known and/or allowed his son Duduzane Zuma to exercise enormous undue influence in strategic ministerial appoint- ments as well as board appointments at SOEs (Public Protector, 2016:40).
The Nemo Iudex in Causa Sua and Audi Alteram Partem: Lessons from State of Capture Report for Public Sector Officials to appoint his/her own staff and to investigate all the issues using the record of this investigation and the report as a starting point. Lastly, the commis- sion of inquiry is to complete its task and present the report with findings and recommendations to the President within 180 days. The President shall submit a copy with an indication of his/her inten- tions regarding the implementation to Parliament within 14 days of report" (Public Protector South Africa, 2016:353-354). Following the release of the State of Capture report by the Public Protector, in the case of the President of the Republic of South Africa v Office of the Public Protector and Others, it is evident that Mr Jacob Zuma was determined to challenge the above remedial actions. Nevertheless, Mr Zuma's efforts to have the Public Protector's findings and remedial actions overturned by the High Court failed when the review was dismissed. Wolf (2017) notes important issues in relation to the recommendations made by the Public Protector. Firstly, restraining the President's powers conferred in terms of section 84(2)(f) was reasonable and con- sistent with the law because Mr Jacob Zuma was the implicated party. Secondly, if Mr Jacob Zuma were to select and appoint a judge who would head the commission of inquiry into his case, he would possibly select and appoint a judge who would be compassionate to him. To support this view, Wolf (2017:25) adds that the Seriti Commission (Commission of inquiry into the arms deal) serves as an important point of reference because Mr Jacob Zuma appointed judges who were sympathetic to him, thus, Judge Willie Seriti, Judge Willem van der Merwe and Judge Francis Legodi. However, Judge van der Merwe recused himself from being part of the Commission. Subsequently the Commission was tainted with reports of manipulation of crucial infor- mation pertaining to the inquiry and resignation of investigators. Indeed, there is no doubt that history could easily repeat itself if the Public Protector had not taken a decision to restrain the powers of the President to select a judge who would lead a com- mission into state of capture. Notably, the decision to fetter President's powers was in line with the nemo iudex in causa sua, wherein the president could not use his discretion to select a judge to investigate his case. Moreover, a decision to allow former President Zuma to select judge to conduct an inquiry into his wrongdoing would constitute a perversion of the Constitution. Nevertheless, according to section 3(1) of the Promotion of Administrative Justice Act 3 of 2000, "administrative action which materially and adversely affects the right or legitimate expec- tations of any person must be procedurally fair" (Republic of South Africa, 2000:4). In relation to the Zuma investigation, it appears that the Office of the Public Protector's decisions were procedurally fair and consistent with the law. For instance, the Public Protector was careful in her recommendations not to take away the President's powers and functions because this would amount to violation of section 90(1) of the Constitution. In other words, the Public Protector could only make recommendations with regard to the processes leading to the selection of a judge rather than the appointment thereof. This explains that there was no way that another person other than the president would have to appoint a judge who would head a commission of inquiry into state capture. In terms of section 90(1) of the Constitution, it is when the President is away from South Africa, unable to perform his presidential duties or when the President's office is vacant that another competent authority would be allowed to exercise powers and functions of the head of state. The former Public Protector, Advocate Madonsela acted judiciously by observing the doctrine of necessity in relation to the exercise of powers and functions of the head of state.
5. Conclusion and Recommendations Based on the above assessment of the State of Capture report by the Public Protector, it is evident that numerous lessons could be drawn therefrom. In relation to the first basic principle of natural justice (nemo iudex in causa sua), it seems the former pres- ident could not see anything inappropriate when he approached a court of law seeking a review of the Public Protector's recommendations in order to use his discretion in his own cause. For this reason, it must be stated emphatically that public officials as decision makers have to develop the capacity to identify and avoid potential conflict of interests in the performance of their duties. When potential conflict of interest or biasness is evident, public officials have to declare and subsequently recuse themselves from decision making processes. Public officials should not find themselves participating or trying to influence decisions either directly or indirectly if they are conflicted. Contrary to what the former President Zuma did in trying to frustrate the investigative processes by Advocate Madonsela, public official have to be exem- plary and cooperate with important institutions
P Hlongwane such as the Public Protector when investigations are conducted. In this way, the public officials have to avoid unnecessary delays that could be inter- preted as an obstruction to the end of justice. This indicates that the actions of public officials as key actors in the public sector have to be informed by law and ethics. Contrary to the former President's attitude not to adhere to the recommendations of the Public Protector, public officials should strive to adhere to the recommendations of the investigative institutions such as the Public Protector. The starting point should be to respect, observe and comply with the provisions of various legislative prescripts in the public sector. Importantly, an endeavor by former President Zuma to take Public Protector's recom- mendations on review could be seen as an attempt to avoid accountability to the South African citizenry. Therefore, there is a need for public officials to keep away from the temptation of using courts of law in an effort to circumvent accountability. As seen in the Public Protector's interactions with former President Zuma, public official ought to adhere to the fundamental principle of audi alteram partem in the process of making decisions in the public sector. For instance, if there is a complaint against any member or directorate within a public sector institution, it will be imperative to provide full details regarding the nature of a complaint reported. If any individual is likely to be affected by a subsequent administrative decision, a notice may have to be given by public officials in order to allow a concerned party to prepare a response, thus in line with the provisions of Promotion of Administrative Act 3 of 2000. The State of Capture report has shown that the Public Protect gave former President Zuma sufficient time to respond and his version in rela- tion to the state capture was heard. This practice indicates that public officials should be in a position to ensure that any individual who is bound to be affected by administrative decisions is given ade- quate opportunity to be heard before a decision is taken. The enhancement of public confidence in government's decision-making practices could be enhanced if there is consistent adherence to the two fundamental principles of natural justice. References Aslam, M.A. 2020. Principle of natural justice in the light of admin- istrative law. Available at: http://www.legalserviceindia.com/ legal/article-1659-principles-of-natural-justice-in-the-light-of- administrative-law.html. Accessed 24 August 2020. Chew, R. 2016. Principles of natural justice in disciplinary hear- ings. SMA CME- Health Law. Available at: https://www.sma. org.sg/UploadedImg/files/Publications%20-%20SMA% News/4803/CMEP.pdf. Accessed 24 March 2020. Dave, S. 2020. Doctrine of Necessity. Available at: http://www. legalservicesindia.com/article/1113/Doctrine-of-Necessity. html. Accessed 24 August 2020. Dhanapalan, A. 2018. Audi alteram partem. Available at: http:// www.legalserviceindia.com/legal/article-46-audi-alteram- partem.html. Accessed 24 August 2020. Genesis 3:9-19, Holy Bible: New International Version (NIV). 2011. Mabuza, E. 2017. Zuma challenges public protector's recom- mendation on state capture report. Available at: https:// www.timeslive.co.za/politics/2017-10-24-zuma-challenges- public-protectors-recommendation-on-state-capture-report/. Accessed 11 March 2020. Manyika, G.K. 2016. The rule of law, the principle of legality and the right to procedural fairness: A critical analysis of the jurisprudence of the Constitutional Court of South Africa. Unpublished Masters Dissertation. Pietermaritzburg: University of KwaZulu-Natal. O'Brien, F. 2011. Nemo iudex in causa sua: Aspects of the No-bias rule of constitutional justice in courts and administrative bodies. Irish Journal of Legal Studies , 2(2):26-53. Okwor, K.O.D. Nemo judex in casusa sua: A case for the re- evaluation of the composition and disciplinary powers of the National Judicial Council. Unpublished Masters Dissertation. Nigeria: University of Jos. Opperman v CCMA and Others (C 530/2014) (2014) ZALAC. Prasad, G. 2018. Bias. Available at: http://www.legalserviceindia. com/legal/article-87-bias.html. Accessed 24 August 2020. President of the Republic of South Africa v Office of the Public Protector and Others (91139/2016) [2017] ZAGPPHC 747. Public Protector South Africa. 2016. State of capture. Report on an investigation into alleged improper and unethical conduct by the President and other state functionaries relating to alleged improper relationships and involvement of the Gupta family in the removal and appointment of Ministers and Directors of State Owned Enterprises resulting in improper and pos- sibly corrupt award of state contracts and benefits to the Gupta family's businesses. Available at: https://businesstech. co.za/news/wp-content/uploads/2016/11/329756252-State- of-Capture-14-October-2016.pdf. Accessed 13 August 2020. Republic of South Africa (RSA). 1994. Public Protector Act [Act No. 23 of 1994]. Pretoria: Government Printer. Republic of South Africa (RSA). 1996. The Constitution of the Republic of South Africa. Pretoria: Government Printer. Republic of South Africa (RSA). 1998. Executive Members' Ethics Act [Act No. 82 of 1998]. Pretoria: Government Printer. Republic of South Africa (RSA). 2000. Promotion of Administrative Justice Act [Act No. 3 of 2000]. Available at: https://www. gov.za/sites/default/files/gcis_document/201409/a3-000.pdf. Accessed 21 August 2020.
