No place for “hanging” judges in Africa
“The buck stops at the top!” Private sector chief executives know this phrase all too well. If the company produces substandard results while they are at the helm, they know to expect their marching orders. They also understand that their personal problem
If only the same could be said for senior politicians, heads of public enterprise, police chiefs and members of the judiciary. These individuals are in positions of power and should be wholly accountable to their stakeholders, the citizens of South Africa. Unfortunately they seem to have forgotten this moral obligation in favour of holding on to the trappings of power.
They repeatedly make a mockery of the statement that all people are equal before the law. Day after day we are reminded that some are simply more equal than others. Senior politicians avail themselves of state resources and powerful political allies to avoid their day in court. And even if they are convicted their popularity ensures preferential treatment, regardless of what their political peers would have us believe.
On judges, Jaguars and concrete walls
Consider the offence of drunken driving. There are a series of well documented steps that have to be followed by police officers at the scene of a motor vehicle accident. And of course if those officers suspect alcohol has played a part in the accident they have to arrange for the appropriate tests to be done. We all know that if we drive under the influence and get caught we are in big trouble. But what happens to high profile people who commit a similar felony. There are two such cases doing the rounds this year.
The first involves Robert McBride, Ekurhuleni metro police chief, who rolled his private vehicle after a function on 21 December last year. Although attempts were made to cover-up the incident, McBride was eventually charged with driving under the influence of alcohol, defeating the ends of justice and fraud. He was released on bail of R1 000 after his first appearance in July 2007 and his case will be heard in the next couple of days, barring any delaying tactics by the defence team.
The second case involves Judge Nkola Motata. His transgression was splashed across national newspaper and television networks after witnesses used mobile phones to record him at the scene. Motata crashed his Jaguar through a concrete wall while allegedly under the influence of alcohol. He has also been charged with driving under the influence (or alternatively reckless or negligent driving) and defeating the ends of justice (or resisting arrest). Motata’s defence lawyer has already shifted the trial from one focussed on the charges at hand to one concerned with whether or not the state witness’ recorded evidence is admissible.
It is heartening that these cases have made it to court and we hope the country’s judicial service is able to function without any further hindrances in concluding the cases.
How to take the money and still be the judge
Judge Motata is not the only senior member of the judiciary in the spot light at the moment. Cape Judge President, John Hlophe, has emerged unscathed, unsanctioned and unrepentant after allegations of an inappropriate financial relationship with Oasis Management Group.
In an unprecedented move the Judicial Services Council (JSC) decided not to continue with an inquiry into Hlophe’s activities despite being unhappy with his account of events. The decision was met with dismay, prompting eight senior advocates from the Cape Bar to call for Hlophe to quit. Their joint statement read: “We believe that there cannot be public confidence in the continuation in office now of Judge Hlophe.”
Has this judge somehow elevated himself to an untouchable status? And how should South African’s perceive their justice system, given the antics of Judges Hlophe and Motata, police chiefs McBride and Selebi, and any number of others? What do we need to effectively fight the scourge of crime that is tearing our country apart?
The judge we all really wanted
Many South African’s are calling for the return of the “hanging” judge. The term “hanging judge” has been around for centuries. It was initially reserved for those judges who frequently handed down death sentences. And one has to go back to the late nineteenth century to find a true example of such a judge. US District Judge, Isaac Charles Parker tried 13, 490 cases during his 21 years on the bench. He sentenced no less than 160 people (156 men and 4 women) to death by hanging. In all, 79 of his execution orders were carried out. Today the term is usually levelled at judges who consistently hand out harsh sentences. A convicted criminal knows that a hanging judge will mete the toughest sentence allowed by law.
“Reintroduce the death penalty and we will rid ourselves of 90% of the rapes and killings,” suggests one FAnews Online reader. This reader is not alone and there is enough circumstantial evidence to suggest the majority of South African’s would vote in favour such a move. The problem is a numeric majority does not guarantee an acceptable moral outcome – and the country’s constitution is in place to prevent us from making such emotional mistakes.
It is unlikely that the reinstatement of the death penalty would have much of an impact on violent crime in South Africa. We are dealing with criminals who already accept death as a likely outcome of their profession. Furthermore, the modern legal system allows so many challenges to court decisions that each death sentence would be repeatedly appealed and tied up in court for years. The convicted felon would simply bide his time in jail until every avenue of defence was exhausted.
We already have the basis of a system that should combat crime. We have a police force, a criminal justice system with a well developed legal framework and numerous correctional facilities. All that is missing is the moral leadership and political will needed to make the system work.
Editor’s thoughts:
South Africa’s judges are meant to stand out as beacons of moral accountability. Yet in the last couple of years we’ve had all manner of allegations levelled against senior members of the judiciary. Accepting improper payments, drunken driving charges and allegations of racism top the list. The last straw is that decisions of the once respected Judicial Services Commission are now scorned by advocates. Has our judiciary lost the plot? Send your comments to gareth@fanews.co.za
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