As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
While watching the Black Stars of Ghana being “cheated” out of a semi-final place at the Fifa World Cup by the very human hands of Luiz Suarez of Uruguay, one of my friends told us that he had just received an sms about the arrest of Paris Hilton for the possession of dagga at a World Cup game in Port Elizabeth. Poor Paris Hilton, I thought: why on earth was she stuck in Port Elizabeth?
It was later reported that Hilton (who – much like Julius Malema – has a certain knack for publicity) arrived at the courthouse about 30 minutes after being arrested and charged. While she waited for the hearing, people with FIFA badges were seen bringing her seven pizzas, 12 cold drinks and six waters in an antechamber. (A more innocent person than myself might have wondered why she was so hungry at that time of the night.) The charges against her were then dropped.
Hilton was lucky. Themba Makhubu, a 22-year-old Johannesburg man, was sentenced to five years imprisonment for stealing a cellphone from a World Cup visitor. Bright Madzidzi, 20, and George Magubane, 28, were sentenced to 15 years imprisonment for robbing Spanish and Portuguese visitors. No force was used during the commission of either of these crimes.
One could ask many questions about these different events. Why is it still a crime to possess small quantities of dagga? Did Paris Hilton get special treatment because she was famous? (One assumes Mr Madzidzi and Magubane were not given any pizza after their arrest.) Why did the World Cup Courts impose such harsh sentences on those convicted? Were the rights of the accused (to be presumed innocent and to get a fair trail) not trampled upon? And why was it possible to investigate and successfully convict these accused when many criminal cases drag on for many months and even years in our ordinary courts? Can we learn something from the experience?
Of course, in South Africa (as in many parts of the world) rich, famous or politically well-connected persons who are accused of committing criminal offenses, are usually not treated in the same manner as other accused persons who might not have the money to employ lawyers and are arrested and tried far from the media spotlight. Having a lawyer helps to ensure that one is treated with some dignity. It also helps to ensure that one’s Constitutional rights are not trampled upon. Without a well-functioning and extensive system providing legal aid to accused persons (something that is lacking in South-Africa), the rich and famous will inevitably be favored – whether they are tried by World Cup Courts or by any other Courts.
But if we accept this sad fact as given, it must be said that, on paper at least, there should be nothing amiss with the justice meted out at the World Cup Courts. Accused persons tried in these courts have exactly the same rights as any other person tried before the courts. They are presumed to be innocent until proven guilty and is entitled to a fair trial. Some of the sentenced handed out at these courts do seem excessive and I suspect that many of the sentences will be reduced in the event of appeals.
What the quick justice meted out at the World Cup Courts underline, is that where the political will exists to deal decisively with the investigation and prosecution of crime, huge improvements in the effectiveness of the criminal justice system will ensue. More money is of course needed. But a more effective use of existing resources will also make a difference.
Will we learn this lesson? Will there be more political pressure on the police to investigate crimes that are committed? Will the police be better managed and supported to help them to up their game? Will the management of courts and of case loads be improved to try and emulate the World Cup Courts experience? Will the police receive better training so that they will be able to do the hard work of investigating cases and of properly gathering the evidence required to secure conviction? Is there a chance that the politicization of the criminal justice system will be reversed?
I wish I could have answered in the affirmative to these questions. Sadly, both the present heads of the police service and of the prosecuting authority were appointed because of their political connections rather than because of their knowledge of the law, their management abilities and their understanding of policing and prosecution. This means that the chances are rather slim that we will learn any of the lessons we could have from the World Cup Court experience.
Hopefully I am wrong. Perhaps both Bheki Cele and Menzi Simelane will grow into their jobs. Perhaps they will learn to leave their political allegiances aside and will work tirelessly to improve the criminal justice system to make it both more effective and more fair.
Then again, given the events of the past few years, I am not optimistic. The NPA Head was fired exactly because he wanted to put political allegiances aside while the Police Commissioner was at first protected because he did not.
Meanwhile the Paris Hilton’s of our world (including politicians and their friends) will probably continue to enjoy special treatment while the rest of us will look on helplessly.BACK TO TOP