Whether the law is an ass, as was asserted by Mr Bumble in Charles Dickens’ novel Oliver Twist, remains a matter of eternal debate. But as a full bench of the Supreme Court of Appeal (SCA) highlights in a judgment last week, sometimes those who act in the law’s name, make complete baboons of themselves.
The absurdities of South African bureaucracy and the foolish vanities of its mandarins is laid bare in a delightfully sardonic judgment written by Judge Malcolm Wallis, who sat with Judge Nonkosi Mhlantla and Judge Connie Mocumie. It concludes an expensive and protracted battle around a baboon called Warren and one couple’s stubborn determination not to be bullied.
Wallis puts it succinctly: “This is a case about a baboon. By all accounts, until it apparently met an untimely end, the baboon behaved impeccably.” The unmistakable inference is that the same cannot be said of the bit players from officialdom – Gauteng Directorate Nature Conservation (GDNC) officials and the South African Police Service – whom Wallis excoriates for this “classic instance of bureaucratic overreach” and their at times unlawful actions.
Wallis writes: “The saga has involved a trial in the district court over four days, an appeal to the full court of the North Gauteng High Court, a petition to this court and then this appeal. The expenditure of time and effort and the costs to the public purse and the appellants, Dr Colin and Mrs Theony MacRae, have been considerable. Those include emotional costs, because for seven and a half years the trial and their convictions for defeating or obstructing the administration of justice and theft of the baboon have hung over their heads.
“And all this was caused by a bureaucratic insistence by the officials of GDNC that the baboon be removed from their possession, where it is common cause it was being properly cared for. The irony of the situation is that … after the baboon was handed to these officials … it was placed in a shelter where it appears to have burned to death in a fire. Had it remained with the MacRaes there is no reason to believe that it would now be anything other than hale and hearty.”
The background to the MacRaes’ ordeal is simple. They run a horseback safari operation on a game farm outside Cullinan. Dr MacRae is a respected palaeontologist and the whole family is passionately involved in conservation, including lion research in conjunction with the University of Pretoria and Onderstepoort Veterinary Institute.
In 2005 a migratory baboon troop got into a tussle with the troop on their farm. When the dust had settled and the interlopers had been seen off, a week-old female baboon was found abandoned.
The convention is that the baby should be euthanised, since baboons are difficult to keep and reintroduce into the wild. “But I just couldn’t do it and since it was a female, we thought it was worth trying to hand-raise her and see whether she might pair with males from the local troop,” says MacRae in an interview. As it happened, GDNC concurred and Jessica, as she was named, had a new home.
A year later, in 2006, GDNC officials confiscated an adult male baboon from a cage on a local farm. Since none of the zoos they approached was willing to accept the semi-domesticated, castrated and defanged animal, GNDC asked the MacRaes, who hold a zoo licence, to take him. It seemed that Warren, as he was immediately named, also had found a new home, and Jessica a new companion.
Says MacRae: “Warren was traumatised when he arrived here, but he recognised my body language. And when I said, ‘Don’t worry, fellow, all will be alright from now, you are safe,’ he came straight over to me an embraced me, with his head tucked into my neck. We stayed like this for what seemed like an eternity, and I just wept.’”
Unfortunately, as is the wont of officialdom, GDNC did a flip-flop. It was all a mistake, they decided, and the donation of the baboon was possibly a contravention of some obscure and unspecified Treasury regulation.
GNDC wanted Warren back and when the MacRaes refused, they decided to seize him. To the bemusement of the overseas tourists staying at the farm, half a dozen official vehicles, including two from the Flying Squad, screeched into the forecourt and disgorged gun-toting officials determined to retrieve Warren.
During the ensuing altercation the MacRaes were arrested and jailed, their foreign guests shocked, but Warren – who had gone for a walk with the MacRae’s young son – was not found. The MacRaes were convicted in the local magistrate’s court of “theft of a baboon” and obstruction of justice, and given a suspended sentence, while Warren was duly caged and removed.
Then came the expensive judicial merry-go-round upon which embarks anyone trying to right a perceived wrong. Leave to appeal had been denied and the MacRaes petition to the high court for leave to appeal was delayed by “missing” transcripts. Eventually the case was heard in the high court and the earlier finding and sentence confirmed. Again, leave to appeal was denied and again the MacRaes had to petition the SCA.
The SCA makes clear in its judgment that the MacRaes never got a fair trial in the magistrate’s court, a fact later conceded by the advocate appearing for the director of public prosecutions. Yet the NPA persisted in putting every obstacle in the way of the MacRaes getting their convictions reversed.
The SCA judgment is scathing about this “inexplicable” behaviour: “It needs to be stressed … that the duty of prosecutors is not to secure a conviction at all costs or to defend convictions once obtained. Their duty is to see that so far as possible justice is done.”
It was a case, writes Wallis, that did “no credit to the conservation officers and police involved or to the prosecution service that pursued it”. If any of them had “exercised sensible discretion … [the case] would have been still born.”
It remains now to be seen whether the GDNC officers who manhandled the MacRaes – “not the kind of behaviour we expect of our public officials”, remarks Wallis – will be disciplined. Or whether the prosecuting authority and the GDNC will apologise to the MacRaes.
The soft-spoken Dr MacRae doesn’t seem to give a damn, one way or the other. There is only one thing that exercises him and that is the faint hope that Warren is still alive: “The shelter in the far north that he was taken to burnt down, but in the past few days I’ve heard that Warren might have survived. No one can or will tell me for sure.”
The GDNC official this columnist spoke to couldn’t or wouldn’t say either: “It’s all a long time ago and in any case we are not allowed to speak to the Press …”.
So where is Warren? Do you, dear reader, perhaps know?