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.
Die Burger asked me to write something about the “Waterkloof Four” for their Saturday supplement. Here is a translation of my contribution published today for those who do not read Afrikaans.
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I wonder whether Jacob Zuma and Afrikaans singer Steve Hofmeyer discussed the plight of the Waterkloof Four when they met last year around the braaivleis fire to discuss the crime problem in South Africa. Steve, so he tells us all the time, is very worried about crime. Zuma apparently too.
Not that Zuma and the Waterkloof Four seem to have much in common.
After all, Zuma herded cattle when he was a boy and only completed five years of schooling before he sacrificed so much – even spending several years in prison on Robben Island – to fight the evil system of apartheid.
I do not know the four young men from Waterkloof, but they clearly grew up in wealthy surroundings and it is not apparent that they had ever suffered or found themselves on the wrong side of apartheid. I do not want to judge them, but I would be surprised if they had ever thought or shown any concern about the injustices of the past. They were mere boys when Mandela was released from prison in 1990, after all.
And Zuma has of course (not yet) been found guilty of any crime. His lawyers have made sure of that by launching one appeal after the other through our courts.
The Waterkloof Four, on the other hand, is spending their first weekend in jail after they were convicted of the racist murder of a homeless man and their last appeal was rejected by the court this week.
Mr. Zuma might never be found guilty of any crime – even though Schabir Shaik was sent to jail for 15 years for bribing Zuma. That is because our legal system requires a court to decide afresh whether Zuma is guilty and whether he had the intention of being bribed by Shaik or not. Maibe he was just very naive or completely unorganised.
But on one level these five men do seem to have something in common. Unlike most South African who find themselves on the wrong side of the law, Zuma and the Waterkloof Four have enough money to engage the services of very expensive and well-trained lawyers.
For many of us it is difficult to have to admit that almost fifteen years after the end of apartheid it seems almost as difficult for rich (mostly white) South Africans to be sent to jail, than it is for the biblical camel to enter through the eye of a needle.
Rich influential people, people with good lawyers, are seldom sent to jail in South Africa.
Some would argue that the Constitution should be blamed for this state of affairs. And it is true that section 35 of the Constitution states that every accused has the right to a fair trial. This means that every accused has the right to be presumed innocent before an impartial and indpendent court until such time as the state has proven the case against him or her beyond reasonable doubt.
But this section of the Constitution also clearly states that a court has to balance the rights of an accused against the interest of the state and society to prosecute crimes efficiently and effectively. I am therefore not convinced that the Constitution can be blamed for this state of affairs.
Most South Africans accused of serious crimes like murder or fraud cannot afford to pay for a gaggle of lawyers to help them enforce their constitutional rights in court. But this is not the case for people like Zuma and the Waterkloof Four. With enough money, legal knowledge and ingenuity good (but very expensive) lawyers can fight every technical misstep by the police or the National Prosecuting Authority and can appeal their case all the way to the Constitutional Court to try and keep them out of jail.
Many members of the public – is Steve perhaps one of them? – and politicians get rather upset by this and complain that “criminals have more rights than ordinary citizens in South Africa” – until they, or somebody they know or support find themselves in legal trouble of course.
It’s a sad fact that in South Africa, where we are still fighting to instill a deep respect for human rights values, too many people still act as if rights only belong to them and their friends and not to everyone in society.
This is why Zuma – who was acquitted on a charge of rape with the assistance of very good lawyers – could have stated without apparent irony earlier this year that rape accused should not be given access to lawyers.
This is also why some of those who have some sympathy with the Waterkloof Four and have cheered on their legal team’s efforts to keep them out of jail by launching appeal after appeal, probably stand around braaivleis fires (with or without Steve Hofmeyer around or on the CD) complaining about the fact that murderers and other despicable criminals hide behind the constitution to keep them out of jail.
If Mr Zuma could find a few minutes in between his various court appearances and musical performances to think about the Waterkloof Four, it might make him at least slightly uncomfortable. He would not fail to notice that legal delays cannot keep one out of jail for ever if one really is guilty as charged.
But I have to admit (do I now sound vengeful?), the news that the four rich white kids from Waterkloof went to jail this week made me rather happy.
In these dark days in which many politicians and even lawyers continue to launch virulent attacks on judges and on the judiciary and our constitutional state can seem to be under threat, the events of the past week sends a positive and uplifting message.
It confirms that we are all still equal before the law – regardless of whether we are rich or poor, black or white, influential or without any friends in high places – and that the constitutional rights of accused persons, even rich and important ones, cannot protect them from the criminal justice system for ever.
This does not mean our criminal justice system is working well. Goodness, Johnny de Lange just last week admitted that more than 2 million cases are never seriously investigated and never even get to the courts.
It does mean that the Constitution works quite well and that when the police and the NPA do their job, courts are well placed to balance the interest of accused against the interest of society. Rich, influential accused persons can use the constitution to delay their appointment with the prison warders and those ugly orange overalls, but if the state does its job, they will end up in jail sooner or later.
Maybe Zuma and Steve Hofmeyer should get together again to discuss the crime situation in South Africa. Maybe they could then agree that the Constitution is not standing in the way of common criminals who deserve to be sent to jail and that guilty people (even rich and influential ones) do go to jail – even if it might take a few years.