Oscar Pistorius - Justice?

The Bail Hearing of Oscar Pistorius has produced a number of elements that are extremely disturbing to anyone who believes in the system of justice, such as it is in South Africa.  The normal red herring has been raised, that the Magistrate must take into account the fact that the alleged crime was directed against a woman.  That is a red herring that should never be allowed in a civilized society.  It has no place in a Bail Hearing.  The prevention of crimes against women belongs to the prevention of crime and to the Policing system.  It is no longer relevant in a Bail Hearing, where the sole factors relate to the questions of whether an accused who is released on bail will attempt to interfere in the proceedings of the investigation, such as inducing witnesses to structure their possible evidence to the advantage of the accused, or whether the accused is likely to attend the trial in due course.  The fact that the deceased person is a woman is not relevant to either of these questions in the vast majority of cases.

The presence of the Minister for Women’s Affairs at the Bail Hearing is equally disturbing, giving the Defence a possible claim that her presence in a trial (- a Bail Hearing is, to some extent, a trial, as the evidence and findings may be incorporated in the criminal trial) had the effect of placing undue pressure on the Court.  This is tantamount to the comment made in the Shri Indavani case, when the Commissioner of Police put his foot into the Prosecution’s case by making irresponsible statements, for populist reasons.  Is it not time for the responsible politicians and Ministers to be given training in what they should and should not say and do?

Another question that must be asked is what exactly is the crime that is alleged to have been committed?  Several commentators have stated, in the learned tones they affect, that the charge should be Culpable Homicide, as the Accused has, apparently, claimed that he thought he was shooting through a locked bathroom door at an intruder.  One wonders whether the distinction between murder and culpable homicide lies in the fact that the Accused knew the deceased!  One shot through a door might be construed to constitute the unintended killing of the person on the other side of the door.  Surely four shots must be a good indication that killing was intended, whoever the person behind the door might be.

The conduct of the investigation by the Police shows clear evidence of a badly bungled investigation of the incident, with many mistakes and omissions which show a clear lack of investigative training.  These mistakes and omissions, in the lack of competent prosecuting and defence capabilities could easily lead to a wrong verdict being arrived at in a criminal trial.  These possibilities seem now to have been ruled out in the case under discussion, but one would be justified in taking the view that there must be numerous cases where a wrong verdict was given, and criminals set free or innocent persons convicted unjustly.  This view is exacerbated by the apparent suppression of relevant evidence by the Police in presenting their case.  It is of critical importance that the South African Police Service understand at all levels that their function is applying the law, not simply obtaining a conviction at any cost!

One hopes that the Bail Hearing and Trial of Oscar Pistorius will go down in the annals of the Rainbow Nation as an example of the effectiveness of the Justice system.  Unfortunately, the record to date does not give much reason to hope that this will be the case.

Susan Shabangu and Anglo Plats

 

The announcement by Anglo Plats that it is to close several shafts and lose 14 000 jobs comes as no surprise to any intelligent observer.  That sort of action is inevitable, given the free-wheeling nature of Government actions, the ever-increasing burden on employers and the inability of the Government to provide a set of labour market conditions that is conducive to the creation of jobs.  These factors have been in operation for virtually the duration of the ANC control of the Government, and show all the signs of becoming increasingly investment-unfriendly.

The response by the Minister of Mineral resources is also no surprise.  The ANC Government as a whole has a tendency to act as though it is the sole arbiter of what happens in the direct investment field.  The arrogant comments made by this particular Minister, one who has failed to cover herself in glory, is equally typical of the statements by representatives of Government and the ANC.

What are the broader facts?

Investors make an investment decision on the basis of the expected return on the investment in the light of the perceived risks of the investment, and the return and risk profile of all the alternative investment possibilities.  The decision does not take into account Government policies, Party desires and Ministerial sensitivities.  It ignores all factors in the economy that do not bear directly on the risk and return.  All of these extraneous factors may play a role once the investment has been made, and frequently blackmail is exercised by the Government and the Unions to achieve their desires in the short term, but the fact remains that the people who really count, the investors who put up the money that is then used as a blackmail tool, will sooner or later make a rational decision based entirely on the fundamentals that are important to them – risk and return.

The desires of the Government play practically no role unless they are converted to legislation or extra-legislative threats to the business in which the investors have made their investments.  The sort of petulant statements, as that made by the Minister, Susan Shabangu, go a very long way to assure the foreign investors that South Africa is not a good place to be.  These statements come on the heels of months of discussion regarding the nationalization of the mines, often demanded without compensation, the threat of compulsory acquisition of a share in the companies by Government or by Government-favoured stooges under the guise of Black Economic Empowerment.  They follow the withdrawal by a number of wealthy foreign direct investors who saw, early on, that South Africa is following the Zimbabwe route to economic disintegration, and the proof of that in the call by the ANC for foreign buyers to boycott South African products like wines and grapes.

The facts are that the ANC is proving to foreign investors that South Africa wants their money, but does not wish to offer a fair deal in return.  The final fact is already becoming clear:  Foreign direct investment, an absolute essential for growth in South Africa, is starting to look beyond the Freedom Struggle rhetoric and to see the economic basket case that South Africa is becoming.