An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
There must surely be something wrong with our criminal justice system if, three years after the scandal broke, Fidentia boss J Arthur Brown has still not had his day in court. Why is it taking so long to prosecute this guy who is alleged to have embezzled millions of Rand? Some of the missing money is said to have belonged to Union members – not to greedy fat cats who wanted to make a fast buck on the sly.
Although, like me, Brown is white (a fact that will become relevant later) I was outraged when I heard about the allegations against him and I was hoping for swift justice. If he is guilty he should be tried and sentenced to 15 years in prison, as far as I am concerned. If he is indeed convicted I would be rather upset if he does not serve his term in a prison cell but rather in a hospital, or if he suddenly remembers that he is terminally ill and is then released – only to make a miraculous recovery to continue his exploits on the golf course.
Of course one remains suspicious, because one suspects that even 16 years after the end of apartheid our criminal justice system is not treating everyone fairly. If one is wealthy, well-connected or white, and can ford expensive lawyers, one probably has a far better chance of never facing charges or of being acquitted, than if one happens to be poor, unrepresented, black and not a good friend of Julius Malema.
The reason why I want to see Brown face the full might of the law is because I believe in the Rule of Law and the importance of a fair criminal justice system in which all individuals who broke the law are dealt with appropriately. As fraud and corruption is a cancer eating away at our society – often to the detriment of the poor and marginalized – it is of particular importance that all those suspected of these kinds of crimes are charged and vigorously prosecuted.
When I heard what Brown had allegedly done, it did not cross my mind that I had to show solidarity with him because he also happens to be white. This, perhaps, has something to do with the fact that despite some evidence to the contrary, there is no general perception amongst bigots and race-haters that white people are generally corrupt and dishonest. If Brown is convicted it would not affect my view of myself (and my sense of self-respect) in any way because I would not even begin to think that what Brown did in any way says anything about my own values and integrity. Neither would it cross my mind that others would make that irrational assumption.
Two things reminded me of Brown – and my reaction to the allegations against him. First, I read a letter in one of the newspapers a while back railing against the ANC whose members, the author claimed, were all corrupt. Corruption, he claimed was written into the DNA of ANC members (the vast majority who happen to be black), so one would not expect anything less of “them”. Second, a reader of this Blog expressed consternation at the news that Advocate Seth Nthai might be prosecuted after the Bar Council found him guilty of unethical behavior. The author wrote:
You almost gave me a heart attack by alluding to the possibility of the Hawks visiting Adv Nthai with anti-graft laws. The Hawks should not flak this seemingly “dead horse”. His removal from the bar, which seems imminent, should suffice. No futher punishment is required. My only concern and to other future succesful black Senior Counsels is that the offsprings of our former oppressors will always use this case to paint us as corrupt to the core.
Now, given the broad reach of the anti-corruption legislation (passed by the ANC government), there clearly is a very strong case to be made to charge Advocate Nthai. If the findings of the Bar Council against him are based on provable facts, then Nthai will have serious difficulty in evading a long jail term if he is ever charged.
This made me wonder: could it not be said that the two attitudes highlighted above are at least partly to blame for the increase in corruption in our society? Some (but of course not all) black South Africans are reluctant to see fellow black South Africans prosecuted and sent to jail for corruption because they fear this would reinforce the prejudices of some (but of course not all) white South Africans who believe that most black South Africans are naturally corrupt and dishonest. Prosecuting Nthai would, in this view, just reinforce racism.
If I am correct, the question is what can be done about this. First, white South Africans have a duty to confront their own racist attitudes or the racist attitudes of fellow whites. They have to understand that deeply embedded prejudices about the honesty and integrity of others based on their race (whether these views are expressed publicly or not, acknowledged to oneself or not) are not only despicable and unethical, but are also destructive as it contributes to the knee-jerk defensiveness of some black South Africans. This can lead to a kind of misplaced racial solidarity which require those who have internalized the racism of the erstwhile oppressors to defend individuals who might be guilty of corruption in order not to “let the side down” and not to help reinforce white racism.
In this sense, I contend rather controversially, many white South Africans contribute to the culture of corruption and impunity.
Second, black South Africans have a duty to confront their own fears of white racism: surely its better to get angry and to confront such racism than to try and hide away from it by pretending a black wrongdoer actually did nothing wrong and is merely the victim of a white conspiracy? I might be wrong (not being black) but it seems to me the attitude expressed above is the product of a racist world in which (perceived and/or real) white domination and control of the discourse still dictates how one behaves and acts. Is it not necessary to challenge the hegemonic racist assumptions head on by rejecting the notion that what one person has done can in any way be attributed to the racial group as a whole, instead of implicitly internalizing those views through a misplaced sense of racial solidarity?
I am not claiming that this is easy in a country like South Africa. One is bombarded in the media and elsewhere everyday with images and ideas which subtly reinforce the notion of the superiority of whiteness and of “Western civilization” (an interesting and highly problematic concept indeed). But how does one begin to resist this? Surely not by buying in to the very assumptions held by racists that the actions of one black person can be ascribed to all who share his or her race?
We will only tackle the scourge of corruption if we focus on individual cases and do not invest such cases with some kind of racial meaning. In a country in which racism is still rife, this is not easy to do. If, say, Adv Nthai is prosecuted and convicted for corruption there will of course be some white idiots (probably more than I might care to admit) who will find their own prejudices about black people “confirmed” and this is hard to swallow. It is natural to want to avoid the “I told you so” glint in the eye of the racists out there. But that would be the easy and, in my view, wrong approach. Instead of taking the fight to the racists and defeating them, it would be to submit to the power of racism.
Now having written all of the above, I am mindful that some will lambast me for blaming all corruption on racism and apartheid. That would be wrong. I am saying the permissive culture towards corruption can at least PARTLY blamed on the completely absurd race politics of the country. But that does not mean that there are not other reasons for corruption or that individuals do not have any choice in the matter.
We all make choices and some of us decide to be corrupt and others do not. Some of us decide to turn a blind eye to it and others do to. Some of us decide to confront racism and others do not. We all have to take ethical responsibility for our choices. But in doing so, we would be daft not to see that larger forces make it difficult to choose the course of action that is responsible and ethical and in the best interest of the country as a whole. In a country like South Africa, doing the right thing is a constant struggle – regardless of the colour of one’s skin. But hell, that surely is no reason not to try.BACK TO TOP