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We all have that story from back in primary school when your friend left their pencil case in the playground but you could run fast so you went to get it while your friend went to class. Then when you arrived late, despite your good intentions, you were in trouble.
No? Well, we all have that story where you try do something morally good that still breaks the rules.
Whether you stopped in a disabled parking bay with no sticker to let your paraplegic uncle get to church, or your girlfriend was in labour so you were doing 180km/h to get her to hospital. Perhaps you even shot a person who was assaulting another.
There are many opportunities to break the rules in favour of a seemingly greater good. South Africa’s legal system tries to navigate these waters with a range of nuances and complexities.
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This is why, despite being illegal to kill somebody, killing somebody in specific instances of self-defence is all good. It’s why we obey speed limits unless we’re emergency services. It’s why we allow doctors to prescribe otherwise illegal medications.
For the layperson, many of the examples are easy to follow, but what happens as the complexity increases? What happens when, say, a person accused of a crime is let off because of a lack of evidence? What happens when, that crime is a sexual assault, and what happens when the accused has previously been accused of the same crime?
We know exactly what happens, because it’s happening right now. Two famous radio personalities have had charges dropped because of a lack of evidence. Though they lost their contracts at a prominent broadcaster, they haven’t been declared guilty.
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Surprise, surprise! South Africans are split on the issue.
I totally understand the split. Opinions will no doubt vary between believing the accusers, taking into account previous accusations, allowing the accused to continue working, accounting for their reputation, accounting for the difficulties in obtaining evidence, the scourge of gender-based violence (GBV) etc.
It’s a messy array of considerations which, socially, people will pick and choose.
What I don’t understand is the desire to apply this pick and choose attitude to the law.
Despite its complexity, to legal minds, the law is pretty clear but it takes massive amounts of reading and understanding to see that clarity; an opportunity most don’t have. Even those who do often end up studying accounting or something.
So though the legal system is, in theory, accessible to everybody, very few people are given the opportunity (and even fewer take it) to understand it in its holistic complexity.
Naturally, as is the case now, there will be a critique alleging that we need to make it easier to prosecute aged sexual assault matters. The problem with this is that we have a standard for criminal matters, and that is to prove things beyond reasonable doubt. Applying a separate standard for GBV criminal matters is a philosophical impossibility in the current framework.
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So, while we need to address the serious issue, the solution is not nearly as simple as one may think, which is why it’s so open to the societal debate we’re facing now.
That particular debate is likely going to go on hiatus for the next few weeks though as we deal with former president Jacob Zuma.
Facing the wrath of the Constitutional Court (ConCourt) as well as the Commission of Inquiry Into Allegations of State Capture he set up, the man is gaining an army of grassroots followers who are echoing his unfounded allegations of unfairness and infringement of rights.
They, like most other laypeople, don’t appreciate the limitations placed on the right to remain silent as a right that only applies in cases where the right is applied to an accused in a criminal matter. They don’t appreciate the considerations in the judgment of the ConCourt.
It’s difficult to appreciate those nuances when you selectively view the law as separate legal instruments and not an entire legal system.
Our own legislature sometimes gets it wrong and that’s why legislation can be and is sometimes challenged in the ConCourt.
Then there are those who will read this and think that the ConCourt has a disproportionate amount of power, without considering the severe limitations on the ConCourt and the ideals of a separation of power.
It’s for these very complex reasons why the fight to legalise weed failed when applying rights of religious freedoms but succeeded years later when applying rights of privacy. It would be interesting to hear where people lamenting the ConCourt’s power sat in that debate.
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It’s frightfully easy to manipulate the narrative around legal systems when most people listening to the narrative are simply forced to live under a set of rules they were not consulted on and never granted the opportunity to understand, and we’ve seen it.
If not in the theatre, where Jean Valjean stole bread to feed his family or Billy Flynn gets Roxie Hart off of murder by playing the press, we’ve also seen it in real life. Evita played the Argentinian masses well and Arnold Schwarzenegger became governor in California because of soaring electricity prices brought on by federal regulations caused by his own party.
Zuma can really break the country and confidence in the legal system if he plays his cards right.
Many may question that if a legal system is so fragile that one man can bring it down, is it really worth saving? I don’t really care for the question because to my mind the obvious answer is yes, but we can debate that another day.
While we’re picking and choosing questions, I’ll raise a further one: If there was a person alleged to have made life so much worse and more expensive for an entire population (to their own enrichment) from food to electricity to water, should they be allowed by that same population to leave the investigation?
Richard Anthony Chemaly. Entertainment attorney, radio broadcaster and lecturer of communication ethics.
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