The judiciary has once again failed its citizens

18 September 2011 - 03:06
By Pinky Khoabane

It took an "insignificant" incident to topple Tunisia's former president, Zine Al Abidine Ben Ali's regime of 24 years.

It began with an altercation between a policewoman, Faida Hamdy, who confiscated the wares of street vendor Muhammad Al Bouazizi because he was allegedly trading without a licence.

Bouazizi was a 26-year-old unemployed college graduate who had chosen not to join the "army of unemployed youth" and was instead selling fruit on the side of the road.

During the altercation, the policewoman slapped him.

The young man had had enough. He set himself alight in protest.

It took this incident to spark a revolt that would reverberate across the Arab world and topple dictators who had for years trampled on the rights of ordinary citizens.

In the week in which we saw the extent to which the judiciary once again failed its citizens here at home, we ought to heed the lessons of the Tunisian revolution. It will take one "insignificant" event for reasonable citizens of South Africa to declare that enough is enough.

When a court decides that the life of a man has a monetary value that can be negotiated then you know we are in trouble. A year ago rugby player "Bees" Roux beat Tshwane Metro Police officer Sergeant Johannes Mogale to death. This week he walked out of court a free man after agreeing to pay the family R750000 in compensation.

He entered into a plea bargain - a phrase I have come to seriously abhor. This after pounding a man to death. In other words, if you have the money, you can kill and pay your way out of jail.

When another court, on the same day, sentences former Ekurhuleni Metro Police chief Robert McBride to two years' jail for drunken driving and five years for lying about it, you truly have to begin to question the meaning of justice.

We had hardly recovered from this legal discrepancy when, three days later, we were hit with another judicial bombshell.

Judge Colin Lamont ruled in favour of AfriForum, the lily-white organisation that purports to look after the interests of minorities while it has championed the rights of one racial group. The judge banned one of South Africa's struggle song. He obliterated pages from South Africa's history and heritage.

In the opening remarks of his judgment, Judge Lamont paints a background of the historical tension between the "European immigrants" or the boers that came to South Africa, and the ANC.

"Ever since the first immigrants had arrived from Europe they had had no regard for the rights, social, political, economic or otherwise of other persons inhabiting the Republic.

"Their morality did not recognise others as having rights of any significance. They proceeded to trample upon the rights of others and seize control of the assets of the Republic for themselves," he writes in his ruling.

He says the ANC represents "the suppressed majority largely comprising black persons who were disenfranchised politically; economically stripped of wealth and subjected to ill-treatment at the hands of the government of the day".

While the inhabitants may now have political freedom, the economy and the land largely remain in the hands of the immigrants.

This same AfriForum in whose favour he found has fought for the preservation of the symbols of the grotesque policy of apartheid in complete disregard for the pain they inflict on others. This is a body that has spat on the efforts of reconciliation and transformation.

These "European immigrants" who he felt a need to protect against the threat of a song still hold "the assets of the Republic for themselves".

It follows that there are legitimate grounds on which the suppressed would pick a fight with the immigrants if they intended to. History has shown that these songs have not incited anyone to kill. Why would they start now?

Much has been discussed about the implications of this ruling and what it means for all the other struggle songs that contain the wordibhunu, but many reasonable South Africans will view this judgment as a miscarriage of justice.

The judge points to the concept of ubuntu, which he says should, among other things, be "contrasted with vengeance". It would be a sad day for our country if people lost faith in the social contract they have with the judiciary - for it to be the sole dispenser of justice.