Our System of Justice was not designed only for those we like

By: Aubrey Matshiqi

There are things that have been bothering me about how, as citizens, we respond to legal matters and other happenings in our criminal justice system. Chief among my concerns, is our predilection for strong opinions about legal matters when we have read none of the documents that pertain to the legal matter at hand. Worse in this regard, are people who should know better, including legal practitioners and academics, whose legal considerations seem to be overridden by their political and ideological inclinations and preferences. As a result, I am now more convinced than ever that bias and prejudice do bypass those parts of the brain that are responsible for rational thought, balance and fairness. And then, there is the emotional blackmail: If your views fall outside the popular, and dominant, canon of rational thought, it is because your actions are in support or defence of the corrupt and nefarious. Before I proceed, let me share with you the questions in my head around which my thoughts in this article are anchored:

• Is the principle of presumption of innocence something that must be reserved, maybe even preserved, for those towards whom we have a favourable disposition?
• Similarly, must the principle of fairness be reserved only for those we like?
• Should lawyers represent those among us who, in our view, have committed the most heinous of crimes, such as state capture, and are therefore the devil incarnate?
• What must happen to lawyers who represent former president Jacob Zuma, in whose image, as some seem to believe, the devil was created?
• The judiciary may be independent, but are all our judges?
• Are black lawyers useless?

Let me start with a few declarations:

• Muzi Sikhakhane – the devil’s advocate – is a friend and comrade. This notwithstanding, i will not recuse myself from writing critically about the Zondo Commission and other legal matters.
• Commissions of inquiry are a monumental waste of time.
• The so-called rule of law is not valueless.
• Our jurisprudence is building towards the creation of a basic structure – as in the basic structure doctrine – to maintain the current structure of race and class privilege in South Africa.
• Certain forms of corruption, particularly those perpetrated by capital in the private sector are legally permissible.

Obviously, given the length of this article, I will not be able to address all the questions and issues raised above. That said, let me start here:

A few weeks ago, Zuma’s lawyers indicated that they would do an application in which they will ask judge Zondo to recuse himself because of what they said was his negative disposition towards their client. Among the grounds which they broadly stated two are pertinent: First, how family and other relations seem to be influencing Zondi’s disposition towards Zuma. Second, statements that Zondo has made about the former president that constitute evidence of this negative disposition.

At the end of last week, Judge Zondo did something that, to me, was both shocking and disturbing. But what I found even more shocking and disturbing is how the media was, not for the first time, hypnotised by what the judge did and said. The judge issued a statement in which he effectively preempted the recusal application against him. He explained that the ‘family and other relations’ are a reference to the fact that, thirty years ago, he fathered a child with Zuma’s sister-in-law. Most journalists and talk-show hosts who I saw and heard talking did not think that Zondi’s conduct was inappropriate. In fact, to them his statement bore further testimony to the fact that there are no depths to which Zuma will not sink to save his skin. Furthermore, it constituted common sense evidence of how useless and clueless his legal team is. Maybe Zuma’s lawyers are indeed useless, and maybe there is nothing Zuma will not do to escape justice, but it is not obvious to me that it is the recusal matter which constitutes evidence of Zuma’s moral incontinence and his lawyers’ incompetence. I am, however, open to the possibility that this incontinence and incompetence may have been evidenced in other matters. All I am saying is that what has been said about the recusal application by Zuma’s lawyers so far falls outside any such body of evidence.

I have no doubt, though, that Zondo’s conduct last week was both problematic and unjudicial, and may be legitimate grounds for his recusal. In the first place, is it proper for a judge to launch a preemptive strike against a party that is going to appear before him? Given the fact that Zuma’s lawyers had already given notice that they would do a recusal application against Zondo – a recusal application that will be heard by Zondo himself – I believe that the judge’s preemptive strike was improper. Furthermore, nowhere in the letter in which the Zuma legal team announced their intention to launch a recusal application is there reference to the issues raised by Zondo in his statement. In the letter, Zuma’s legal team does refer to family and related matters but nowhere in the letter do they provide specific details including those that Zondo shared with the nation through the media last week. It may well be the case that such specific details will be raised during the recusal application but, prior to that happening, neither the judge, the media nor the public knows what will be argued by the legal team. While it may not be incorrect for the media or us to speculate and opine about what the reference to family and other relations pertains to, it is certainly not dignified in this instance for the judge to behave like us. So why did he do it?

It is possible that the judge was responding to a question from a journalist in which case all he had to do was to tell the journalist in question that he could not respond to questions about a matter he was still to hear. But respond he did. Therefore, it is possible that he, on his own or because of advice he received from quarters inside or outside the commission, he saw an opportunity to engage in a propaganda campaign against Zuma and his legal team. If he thought such a campaign would work, he was absolutely right. The media swallowed the piece of judicial propaganda hook, line and sinker. To me, this came as no surprise because in our political and pseudo-legal discourse of angels and devils, good guys and bad guys, it is not Zuma who is the good guy and angel of media narratives. Our media narratives are generally uncritical of the commission and Zondo himself. If Zondo tells us the sky is red, our media will not check for themselves whether it is no longer blue, especially when they run the risk of finding themselves in agreement with Zuma and his legal team. I suppose it is at this point that i will be accused of defending corruption, state capture and corruption. In order to provide incontrovertible evidence of my support for things venal, corrupt and nefarious, let me close this part of my argument by stating the following: It is my view that the judge’s conduct was not only injudicious and unjudicial, but, in effect, was probably meant to mislead or lie to the nation.

Having said that, the reason we are so uncritical is because we do not believe that the principle of presuming parties innocent until proven otherwise should extend to those we do not like or whose interests and ours do not intersect. In short, due process was not designed for those we do not like or those we firmly believe are guilty. That is why the fact that Zondo was appointed unconstitutionally to chair the commission was not a problem to us because our desired end justifies the means since, through the commission, the most corrupt South African will finally be hanged. That is why we can countenance the subversion of the right to silence and the right not to incriminate oneself by allowing the National Prosecuting Authority (NPA) and the commission to ambush witnesses by using what they say to the commission against them in criminal proceedings. And, that is why it is acceptable to demonise lawyers for representing Zuma. That is why it is not problematic to call on our courts not to grant bail to an accused as punishment for the crimes we believe they are guilty of committing. I have a suggestion: When people we do not like are accused, our courts must start with sentencing and then proceed to hear evidence. In other words, the court of public opinion has become an apex court where judicial populism will one day reign supreme if we do not reflect deeply about the issues i am raising in this article. To say i am in a state of despair about these matters is an understatement. I believe very strongly that a system of justice must be judged by how it treats those who have committed the most spine-chilling of crimes. If our system of justice cannot be fair to a serial killer who has committed hundreds of murders, the day is not far when it will not be fair to you. It is for this reason that I was terribly disturbed when I heard legally trained people and their cheerleaders in the media arguing that the chair of a commission of inquiry, unlike a judge in a court matter, does not have to be impartial which, to me, explains some of the histrionics and theatrical performances we have seen from the chair of a certain judicial commission of inquiry. This is possible, i suppose, because some among us believe that the basic principle of natural justice should not extend to tribunals such as a commission of inquiry. Lafa elihle  kakhulu. I will not translate. All I will say is this: That which we are busy sowing right now we shall reap one day. When that happens, I hope it will not be our children and theirs who will inherit the calamitous impact of our mistakes.

This brings me to Economic Freedom Fighters (EFF) leader Julius Malema and his statement that black lawyers are useless. What is the meaning of this statement? My initial inclination was to dismiss it as another populist statement from a South African politician. Upon reflection, i decided against the temptation to be dismissive. The statement betrays an underlying malady and is indicative of how even those among us who offer militant critiques of the pathology of white racism have, to some extent, internalised the same racism. I have no doubt that there are lawyers who are black and useless. I also have no doubt that there are black lawyers who have disappointed Malema. However, I know lawyers who are white and useless. Also, I have no doubt that Malema has been disappointed by white lawyers. So, why, according to Malema, are black lawyers useless? The first problem is that Malema is talking about the help and the help can be spoken to and about in this manner for the political entertainment of an audience. Furthermore, black lawyers must appreciate that we do them a favour when we hire them to represent us when there always exists the option of enlisting the help of a lawyer who is better and white. But this Is part of a deeper pathology that tends to afflict black people who have arrived. The pathology does not always manifest in terms of pejorative and derogatory statements about black professionals or black people in general. Sometimes, as many black professionals will tell you, it rears its ugly head in terms of the tendency to employ white professionals when there is a glut of financial resources and their black counterparts when there is penury. But what underlies the pathology of internalised racism is what we see when we look at another black person. Looking at such a black person is akin to standing in front of a mirror. What we see is our reflection, something that, like us, but unlike those of a lighter hue, lacks value. This, in part, is why we are uncritical of false narratives about the true nature of serious matters such as corruption and state capture.

Aubrey Matshiqi is a political analyst and researcher, He writes for DDP in his personal capacity and his views do not represent those of the organization.  @https://twitter.com/MatshiqiAubrey