The nemo Iudex in causa sua and audi alteram partem : lessons from state of capture report for public sector officials

Abstract

The basic administrative principles of nemo iudex in causa sua and audi alteram partem are important 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.