UCT law professor Richard Calland fiercely rejected the basis of the EFF and DA objections against his appointment and indicated to National Assembly speaker Nosiviwe Mapisa-Nqakula that he was willing and capable to serve on the independent panel appointed to assess whether a motion to impeach president Cyril Ramaphosa passes muster.
In a written response to Mapisa-Nqakula, dated September 19, Calland maintained that he was not biased, there was no reasonable basis for this and that he would not recuse himself unless the speaker felt his appointment would cloud or clutter the process.
Calland argued that the test for recusal would be if he was in fact biased for or against Ramaphosa, or if there was a reasonable apprehension that he would be.
“Against this backdrop, my response to the objection submitted to the speaker on behalf of the EFF is on the first part of the test for recusal; I am a fiercely and conscientiously independent person,” he said.
“This informs all of my work, even when it attracts detractors.”
Furthermore, Calland stated, he was a trained lawyer capable of assessing evidence and reaching conclusions based on the impartial application of law.
“Hence, I consider myself capable of serving the section 89 panel without fear, favour or prejudice and I confirm that I am willing to serve.
“I would not have accepted the nomination otherwise,” he added.
Calland said as a political commentator he had written regularly about Ramaphosa and has broadly supported a head of government whom he had observed to be reform-minded in the efforts of his presidency to restore integrity in public life and to rebuild state institutions.
“But on Phala Phala specifically, I have publicly criticised president Ramaphosa for not accounting when our political institutions have demanded it.
“I do not and would not tolerate impeachable conduct by any public officer,” he said.
On the issue of a “reasonable apprehension of bias”, the operative word was “reasonable”, Calland said.
Someone was not biased just because another person claimed that they were.
“There has to be an objective and justifiable basis for the assertion.
I submit that very great care should be taken not to accede to unreasonable or unjustified accusations of bias, because the risk is that this will create a potentially dangerous precedent.
— Richard Calland
“Accordingly, I submit that very great care should be taken not to accede to unreasonable or unjustified accusations of bias, because the risk is that this will create a potentially dangerous precedent whereby merely raising an objection such as this, without an objectively reasonable basis or justification, but in service of a particular political agenda or interests, is sustained.”
This would do a different kind of harm to the integrity and legitimacy of the process, he cautioned.
Calland urged Mapisa-Nqakula to conclude that the objection from the EFF did not find an objective or justifiable basis for a reasonable apprehension of bias.
He also noted that none of the references made in the EFF objection referred to Phala Phala, which is the subject of the section 89 motion, “so there can be no suggestion that I have a closed mind on this topic or that I have prejudged the matter in any way”.
All of the other references were from a period before the Phala Phala allegations were made in early June 2022, and some of them were taken carelessly out of context, he said.
Calland told Mapisa-Nqakula he did not want unnecessary controversy over his appointment to divert attention from the real issues that are at stake in such an important constitutional process; nor did he want his appointment to delay the process, clutter or otherwise impair it.
“Accordingly, if the speaker takes the view that this would be the consequence of my appointment, then I will reconsider my position.”
Calland was earlier this month appointed alongside retired high court judge Thokozile Masipa and retired chief justice Sandile Ngcobo as chair.
His inclusion was challenged by opposition parties who questioned his impartiality and claimed he had shown a “consistent bias towards the president, which makes him unsuitable for this role”.
Mapisa-Nqakula removed him on Tuesday and appointed former state capture commission’s evidence leader Adv Mahlape Sello.
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