Malema misguided on judicial transformation

African National Congress Youth League president Julius Malema selected the decisions in his case before the equality court in Johannesburg and those of Robert McBride and Bees Roux to draw the conclusion that the South African judiciary has failed to transform since the end of apartheid.

This, like many of his other utterances, is not based in fact but rather on whatever emotional rant he believes will be most popular with the masses. In this case without a study of the judiciary as a whole, post-apartheid, Malema would be unable to make a meaningful assessment of the transformation or otherwise that it has undergone.

Transformation itself is an extremely difficult word to pin down in modern day South Africa as has been noted by Professor Pierre de Vos.

“Transformation” has become one of the most used but least examined words in our political discourse. It is a word often bandied about by people in a way that suggests a rather narrow understanding of the word — as if transformation is about replacing reactionary middle-aged white patriarchs with reactionary middle-aged black patriarchs. If this is what we mean by “transformation”, then we do not understand the word as it has been developed by the Constitutional Court and academics.

“We are then also demonstrating that we have a rather narrow and less than inspiring imagination and have little ambition to fundamentally change the nature of power relations in our country away from an authoritarian apartheid past to a more inclusive and egalitarian future.” ( Professor Pierre de Vos ).

Yet without defining what he means by transformation or basing his allegations on anything remotely resembling a scientific study Malema — citing the decisions in these three cases which he, with his superficial knowledge of the latter two described above, just happens to disagree with — concludes that the judiciary is racist.

The Cape Argus reported : “On Judge Colin Lamont’s ruling in the Johannesburg High Court on Monday that interdicted Malema and his supporters from singing ‘shoot the boer’, Malema said the judiciary was ‘racist’ and accused Judge Lamont of having his own agenda.

“Asked whether he thought the courts were racist, he said: ‘If not being transformed means it’s racist, then so be it. Once again we find ourselves subjected to white minority approval. Apartheid is being brought through the back door.’ ”

The word “racist” is defined as “someone who does not like or respect people who belong to races that are different from their own and who believes their race is better than others”. A good example of racism being “whites are criminals”. So as one of the worst offenders South Africa has produced post-apartheid, perhaps his knowledge of what is racist might flow from personal insight.

This does not however detract from the fact that as a populist leader these accusations need to be examined.

Previously we looked at Judge Colin Lamont’s decision on the singing of “shoot the boer” and the response thereto which was divided almost strictly along racial lines as a reading of the comments to my post on the subject clearly demonstrate.

Notwithstanding the reaction in the hate speech matter, let us look at the two other cases referred to by Malema — McBride and Roux — and see if this time we can leave our racism at the door and actually consider what we think is right or wrong and whether we agree with the courts approach to each.

Bees Roux
Jacobus Stephanus Roux was charged with the murder of Ntshimane Johannes Mogale in that in August 2010 he did (allegedly) unlawfully and intentionally kill a law enforcement officer. In addition a second count in that he (allegedly) drove a vehicle while under the influence of liquor and drugs.

Those are the charges faced by the Blue Bulls prop.

In terms of a plea in terms of section 105A of the Criminal Procedure Act 51 of 1977 any agreement has to be signed off or confirmed by all the parties involved. In this case it includes advocate S Mahomed (senior state advocate), advocate George Baloyi (deputy director of public prosecutions) who received authority from Menzi Simelane (national director), advocate JP van der Westhuizen (state advocate), Roux, Rudi Krause of BDK Attorneys representing the accused, Eric Maluleka (investigating officer) and Margaret Mogale (deceased’s widow).

Accordingly, in this instance, the state was represented by some of its most senior personnel who examined the case in great detail before reaching the decision to enter into a plea bargain.

As opposed to this Malema, I would imagine, got his information from what he reads in the newspapers.

In accordance with the plea and sentence agreement and the plea explanation, which I have been through, it is not in dispute — between the state and the accused — that the accused was acting in self-defence at the time of the incident. In other words the case — if it was to be fought in court — would have to be argued over the question of whether Roux exceeded the bounds of private defence.

“Whenever private or self-defence is raised, the inquiry is twofold. The first leg of the inquiry is whether the requirements of private defence have been met. This entails the question whether the bounds of private defence were exceeded. The onus rests with the state to prove beyond reasonable doubt that the requirements or conditions for private defence did not exist or that the bounds of private defence have been exceeded. The test to be applied is an objective one. When the test of reasonableness and the conduct of the hypothetical reasonable person are applied, the court must put itself in the position of the accused at the time of the attack. If the state does not discharge this onus, the accused must be acquitted. On the other hand, if the state discharges the said onus, that is not the end of the matter and the second leg of the enquiry must be proceeded with. The second leg of the inquiry is then whether the state has proved beyond a reasonable doubt that the accused did not genuinely believe that he was acting in self-defence and that he was not exceeding the bounds of self-defence. The test is purely subjective and the reasonableness or otherwise of such belief whether or not it is based on or amounts to a mistake of fact or of law or both, is only relevant as one of the factors in the determination whether or not the accused held the aforesaid genuine belief.” (See Burchell and Hunt, South African Criminal Law and Procedure (supra) at (164-81 and 330-2); S v De Blom 1977 (3) SA 573 (AD).

In other words senior state lawyers, presented with the facts before them, who believed that this was a case of private defence would be running a substantial risk that the accused would be acquitted on the main count. As seen above the second leg is subjective leaving the state the difficult onus of proving beyond a reasonable doubt that the accused did not genuinely believe that he was acting in self-defence and that he was not exceeding the bounds of self-defence.

As opposed to that and on the table was the offer of a plea of guilty on both counts (save that it would be culpable homicide not murder) and substantial damages being paid to the widow of the deceased. The deal accordingly represents outstanding work done by the NPA.

Despite reports in the media regarding restorative justice, that is not the main concern in cases like these. If the state believes that it will be able to obtain a conviction of murder then there is no question of allowing parties to buy their way out of that predicament. The issue of restorative justice only comes into play where the state knows that it runs the real risk of losing the case and tries to get the best deal for the victims of the crime while obtaining a lesser conviction.

As seen above the prosecution comprised some of the most senior lawyers the country has and for Malema to call their decision racist is not only wrong, it’s dangerous.

Convicting and sentencing by popular demand, thankfully, does not form part of our law. That can be obtained, I would imagine, outside the Mogadishu High Court by those with the most powerful weapons. In this case Malema has insulted the state and the court without knowing the facts. We know this because Roux was not a decision of the court other than to sanction the plea bargain between state and accused, which it can reject if it believes it is unacceptable.

In terms of moral blameworthiness Roux has been severely punished for his deeds in that he may have exceeded the bounds of private defence.

Robert McBride
McBride is the former chief of the Metropolitan Police for the Ekurhuleni Metropolitan Municipality.

As such, in a country that spends tens of millions on advertising campaigns to reduce the horrific drinking and driving death toll, his conduct has to be seen to be exemplary without any traffic-related convictions.

He is meant to be the metro police’s role model on traffic policing flowing from the position he holds.

Instead during December 2006 he attended a Christmas party where after, under the influence of alcohol according to witnesses, he was involved in a single car collision near Centurion.

What followed was a disgrace to both the Ekurhuleni metro police and McBride.

Members of their unit arrived at the scene — 40 km out of their jurisdiction — and allegedly assaulted witnesses and threatened to shoot them if they phoned the South African Police Service (SAPS). They took McBride away from the scene (a crime in itself) and someone took blood samples.

The three metro police officers involved in removing McBride were Patrick Johnston, Stanley Segathevan and Ithumeleng Koko, who initially supported him but then gave “damning statements” to the SAPS.

What followed was McBride trying to arrest Johnston at a petrol station, on the pretext that he was driving a car with tinted windows. Segathevan joined Johnston, and members of the Boksburg SAPS Task Force arrived at the scene. McBride is alleged to have abused the SAPS members. Johnston and Segathevan were arrested by the Ekurhuleni metro police, but Henk Strydom, Boksburg’s senior public prosecutor, declined to prosecute.

Johnston and Segathevan obtained a court interdict to protect them from McBride and the Ekurhuleni Metro Police Department claiming that McBride had made death threats against them.

McBride was charged with drunken driving, fraud and defeating the ends of justice following the car accident, In his defence he produced a medical certificate stating that he was suffering from hypoglycaemia (low blood sugar). The doctor who gave him the certificate faces charges of fraud and defeating the ends of justice with regard to the issuing of it.

In April McBride was convicted of drunken driving and defeating the ends of justice.

He was sentenced to five years’ imprisonment for defeating the ends of justice, and two years for drunken driving. The drunken driving sentence was suspended for five years and his driver’s licence for 18 months.

Perhaps Malema, between his disciplinary hearings for insulting President Jacob Zuma, can explain to us what is racist about the decision handed down.

In terms of moral blameworthiness we have a metro police chief who should be a role model for the government’s “arrive alive” campaign being convicted of drunken driving. Worse he then tries to circumvent the law he is meant to uphold, using police resources to do it, and is accused of issuing death threats against witnesses.

What sentence would the youth league president suggest?

McBride, in those circumstances, is extremely fortunate to have received the sentence he did. If part of sentencing is to provide a deterrent then he has gotten off extremely lightly. The crime (cause of untold road deaths), the criminal (head of traffic police) and interests of society (massive interest in bringing this crime under control) suggests a far stiffer sentence. The magistrate clearly did not forget to temper this one with mercy.

Accordingly I would be interested to know why the judgements concerned show lack of transformation or are considered racist.

Transformation, to me, means that blacks should form the majority of our state and court officials while all should be equal before the law. In terms of the former I would be surprised to learn that it were otherwise so kudos to the judiciary there, while in the case of the latter there may be a problem. In this regard the elite — not the whites, pop down to court or read a newspaper — seem to be getting a better deal than the man and woman in the street.

That however is another story.

Mogoeng Mogoeng – SA Judiciary cartoon