The rule of law.
A basic principle of law is that every citizen is bound by the law and is presumed to know and understand every law. Lack of knowledge is no excuse. That this principle is absurd is trite. The number of laws being passed each year, and the multiplicity of regulations being promulgated by unelected and unrepresentative civil servants under those laws is simply too great for even the best-informed expert in a single sub-branch of law to have more than a general knowledge of the applicable laws. A request for elucidation of the rights and obligations of a citizen to a Senior Counsel will have the immediate result that he turns to research that subject. An expert in VAT will reread the Act and consult the textbooks before he feels able to give a firm opinion on those rights and obligations. What possibility does the average citizen have to comply with the principle that he knows and understands every law applicable to him? That question is valid in most situations in which the citizen may find himself, and, in most cases, the understanding that the citizen has will be vague and incomplete, and certainly insufficient to enable him to comport himself in the manner expected by those laws. Recourse to the legal profession will certainly be expensive, and will often result in incomplete or incorrect information.
This proposition was made abundantly clear in the recent case in the Constitutional Court which dealt with the breach of the Constitution and of his Oath of Office by the State President, when his Counsel submitted that the State President erred in not understanding that the Office of the Public Protector had a right under the Constitution to issue binding findings that could only be reviewed by a competent Court of Law. The State President had unrestricted access to the broadest possible range of advice, ranging from Constitutional Court Judges, through State Attorneys and legal officers, down to his own legal advisors. His claim that he did not know the simple proposition of law was either a damning indictment of the presumption of complete knowledge by the average citizen, or a damning lie by the most senior representative of the people.
The case of the trial of Shrien Diwani for the murder of his wife by a gang of hit-men illustrates very well the failure of the rule of law. The accused, initially let free after questioning which elicited numerous doubts about his innocence, was subjected to numerous Hearings, culminating in his extradition for the UK in a chartered aircraft (reasons unclear – Diwani could not be considered a security risk under guard in a normal flight) and followed by a lengthy period of observation in a mental institution at State expense, was brought to a head in a trial which, from the outset, showed an almost comical lack of preparedness by the prosecution. This, in one of the most internationally high-profile murder trials of the decade! The Judge soon found that the witnesses were unreliable and that there was no case to answer! If ever there was a criminal trial in which one could ask who had been bribed to ensure a verdict of not guilty, this was it. The Diwani trial went a long way to affirming in the mind of Joe the Plumber that there is no such thing as justice in law.
The shenanigans at the office of the National Prosecuting Authority have confirmed the view that South Africa is not a State ruled by law. Highly-placed or well-connected people seem to be able to manipulate the justice system at will, and instances of seemingly incorrect guilty verdicts of innocent, ordinary, people, who cannot afford high-priced lawyers, abound. The Minister of Justice paid more than R100 000 000 in damages for wrongful arrest in one year, and, in one such case in which the wrongful arrest took place in 2011, the Minister of Justice managed to delay the case for damages until 2015, and then took another four months to pay the amount ordered. It is usual for the attorneys of the winning claimant to attach assets of the Police and threaten to have them sold at a Sheriff’s auction in order to force payment of the Court-ordered judgement. In the case mentioned, the claimant had been arrested at a border crossing in order to give effect to a Warrant of Arrest in an alleged case of breach of the Environmental Control Act. The alleged offence allegedly occurred after he had been absent from the country for more than a year, and the Warrant was issued because, it stated, he had failed to attend a Hearing, which he had not been instructed to attend, of which he had no knowledge, and which had never taken place, all facts known to the Police at the time the Warrant was issued. The warrant was issued under a clause of the Act which had not come into effect until nearly two years after the alleged offence was supposedly committed. The accused was not given a copy of the Warrant of Arrest or of the details of the charge against him, and had no possibility of proving his innocence until five months and five separate postponements of the Court Hearing after the arrest, involving extensive travel and lengthy waits in filthy Magistrates Courts, only to have the case postponed again, and then, at the final Hearing, the Police withdrew the Charge. During this long and bad experience, it was found that the Magistrates, who authorise the Warrants of Arrest on a sworn statement by the Police investigating officer, routinely fail to apply their minds to the matter, or often even to read the underlying document! Not even the most ardent supporter of law and order could claim that the Rule of Law prevails in South Africa!
Criminals are entitled to the same rights as all other citizens.
There is a prevailing belief that everyone without exception deserves the full protection of all civil rights. This ignores the fact that criminals, by the very nature of their acts, do not believe that others enjoy the same rights as they. The result of the view that criminals enjoy the same rights as all other citizens often results in them enjoying superior rights. This is well illustrated by the fact that a number of people, who are unable to succeed in society, commit a crime so that they may enjoy the food, comfort, medical care and benevolent protection of a prison life. A man or woman living in a self-built shack has less availability of good food and warm bedding than a convicted criminal.
The argument goes that a prison sentence is not so much a punishment as a rehabilitation of the offender. That may be so in a limited number of cases, but a man who has murdered or raped repeatedly should not enjoy the comforts of a modern prison life. He has no possibility of being rehabilitated, and the view that he should not be punished makes a mockery of the meaning of justice. There must be a return to the view that a prison sentence is a severe punishment, even that the perpetrator of crimes that, in a more just past, would have merited the imposition of a death sentence, should result in the civil rights of the prisoner being revoked, so that the sentence does become a true deterrent to behaviour of this nature.
The case of Oscar Pistorius is pertinent. Most South Africans felt outrage that a man, found guilty of shooting another person (regardless of whether he knew who that person was) should have been given a sentence that resulted in him serving only ten months in prison, followed by a period of house arrest. Pistorius knew that, when he shot through the door, he had a very high probability of killing the person behind it. That complies with the legal definition of murder. He nevertheless shot and killed Reeva Steenkamp. That, in the opinion of most South Africans, would justify the revocation of his rights to protection under most laws during a period of internment that would bring home to him the gravity of the act of killing another human. He should have been subjected to difficult and unpleasant circumstances for a long time. Instead, he was housed in a pleasant cell, given the opportunity to improve himself while living a life that was certainly better than eighty per cent of the dwellers in squatter shacks. At the end of that, after ten months, he could go home and reflect on his sins, with his conscience prodding him to repent. Photographs of the released Pistorius show scant sign of repentance. The cost of that ‘punishment’ detracted from the funds available, probably to the tune of at least half a million Rands, to improve the lives of dozens of more deserving and less morally-reprehensible people. Of the two sides, which has a better claim on the funds of the State? And Oscar Pistorius was a very mild case of criminal conduct. Anyone could think of dozens of more serious cases, all of which are less deserving of the rights we accord them under the moral code we have espoused. One case in point is Jacob Zuma, a man in the highest office of trust, who wilfully and on at least two occasions breached his Oath of Office, an oath which he declared to be sacred, lied about his actions repeatedly and arrogantly to Parliament and the public, and then claimed not to know that he had done so. One may be forgiven for wondering which of the two, Pistorius or Zuma, was more morally reprehensible in his acts, and which of the two deserved to have his civil rights revoked, the impulsive murderer or the coldblooded thief of the nation’s assets.