The Star Early Edition

Don’t de­liver jus­tice in anger

- Nathaniel Lee Crime · Discrimination · Sexual Abuse · Human Rights · Society · Violence and Abuse · Thokozile Masipa · Reeva Steenkamp · U.S. Supreme Court · Oscar Pistorius

FIRST it was Judge Thokozile Masipa with her in­ex­pli­ca­ble le­niency upon sen­tenc­ing Os­car Pis­to­rius for the mur­der of his girl­friend Reeva Steenkamp.

Judge Masipa had ini­tially found Pis­to­rius guilty of a lesser charge of cul­pa­ble homi­cide af­ter swal­low­ing his im­prob­a­ble “in­truder” ver­sion line, hook and sinker. Even for a lay­man, such a ver­sion is only pos­si­ble in fa­bles.

Fol­low­ing the State’s ap­peal with the Supreme Court of Ap­peal which up­held a mur­der con­vic­tion for Pis­to­rius, the same Judge Masipa found it ap­pro­pri­ate to im­pose a “shock­ingly in­ap­pro­pri­ate” sen­tence of six years in jail. This af­ter Pis­to­rius had cold-blood­edly shot his girl­friend four times through a toi­let door claim­ing he had mis­taken her for an in­truder. The case drew a lot of com­men­tary with many ar­gu­ing cor­rectly the judge had erred. One is re­minded of the words of the Latin writer, Publius Cyrus when he com­mented many years ago that “the judge is con­demned when the guilty is ac­quit­ted”. Much as Pis­to­rius was not out­right ac­quit­ted, the le­niency of his sen­tence is bizarre, to say the least.

Fast for­ward (to) Oc­to­ber 2017, an­other judge who goes by the name Se­gopotje Mphahlele has done it again. This time the hon­ourable judge has deemed it fit to sen­tence two young men to 16 and 19 years im­pris­on­ment with five years sus­pended for both for what can in all hon­esty be re­garded as a cruel prank.

By all ac­counts, the ac­tions of Willem Oosthuizen and Theo Jack­son in forc­ing their vic­tim, Vic­tor Mlotshwa into a cof­fin were rep­re­hen­si­ble and de­serv­ing of pun­ish­ment. What baf­fles the mind is their con­vic­tion on a charge of at­tempted mur­der. Prov­ing at­tempted mur­der should not be very dif­fi­cult as the vic­tim in al­most all cir­cum­stances is alive and present.

The video of the cof­fin as­sault shows the ac­cused forc­ing the com­plainant into a cof­fin with no ev­i­dence of any se­vere beat­ing. The vic­tim him­self did not show any vis­i­ble in­juries that might have led to his death.

The me­dia at­ten­tion, ow­ing to the ra­cial un­der­tones of the case, might have swayed the judge with ac­cu­sa­tions of the racism of the ac­cused brought to the fore. It must be re­mem­bered that courts have a func­tion of dis­pens­ing jus­tice and not re­venge. It is there­fore ex­pected judges apply their minds and not their hearts when pre­sid­ing over cases. Pol­i­tics, anger or any other emo­tion should not be the de­ter­min­ing fac­tors when ad­ju­di­cat­ing over cases which im­pact on lives.

The learned judge would be well ad­vised to heed the words of the Ro­man politi­cian and lawyer of yore, Mar­cus Til­lius Cicero when he opined that “anger should be es­pe­cially kept down in pun­ish­ing, be­cause he who comes to pun­ish­ment in wrath, will never hold that middle course that lies be­tween the too much and the too lit­tle. It is also true that it would be de­sir­able they who hold the of­fice of judges should be like the laws which ap­proach pun­ish­ment not in a spirit of anger but on one of eq­uity.”

Courts have a func­tion of dis­pens­ing jus­tice not re­venge


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