05 Sep 2006: ISS Today: South Africa: Is Justice Really Blind?

05 September 2006: South Africa: Is Justice Really Blind?

 

A  recent  newspaper article by Mpumelelo Mkhabela (1) was just one among many that reported about Mr. Tony Yengeni (the former ANC Chief Whip) handing himself over to prison after his appeal against sentence was unsuccessful. The unsuccessful appeal and the resultant imprisonment elicited a lot of debate among South Africans. The debate seemed to focus on whether there was conspiracy against Mr. Yengeni and whether the sentence was appropriate. It is submitted that discussion about access to justice and equality before the law should be part of the debate. Cases as high profile as this one seem to show that access to resources is a key factor in access to justice.

 

The conviction and sentencing of Mr. Tony Yengeni has elicited a lot of debate in South Africa. There are those who symphathise with Mr. Yengeni by arguing that he did not do anything wrong and is a victim of some conspiracy. People arguing along these lines often go further and say even if he has done something wrong, the punishment is far too harsh. He should have been given some alternative sentence as opposed to imprisonment. Indeed Mr. Yengeni himself made this point just before going to prison. He argued that imprisonment should be reserved for dangerous criminals. There are, however, people who think that justice has been served and, in the interest of equality before the law, Mr. Yengeni should face a jail term like any other citizen would in that situation.

 

What seems to be missing in this debate is what this trial says about our criminal justice system. There are two main points to be made here. The first is that the criminal justice system proceeded without undue influence. The state investigated the case, charged Mr. Yengeni and a conviction followed. It is significant that the political status of the accused did not affect the trial. Equally significant is the fact that the accused person had an opportunity to answer the case against him in an open court. This is an accolade for South Africa’s criminal justice system. The message is that justice is being administered without fear or favour.

 

However, the processing of a case such as that of Mr. Yengeni, as many other high profile cases, raises questions about access to justice. Making justice accessible to all is a matter that concerns many people. In this sense, access to justice means ability of individuals to fully participate in the justice system. In the adversarial justice system such as South Africa’s, the duty is on the state to prove the case against an accused person beyond reasonable doubt. In practice, this battle is between the state, as represented by the prosecutor/prosecution team, and the accused person. Given that a prosecutor is a legally trained person, it then makes sense that the accused person has a right to legal representation.

 

There is no doubt that access to resources impacts directly on access to justice. Put differently, the extent to which one participates in the justice system depends largely on the resources available to oneself. In the case of Mr. Yengeni, the case went through the magistrate’s court, the High Court and the Supreme Court of Appeals. The question begging answering is: would someone less fortunate than Mr. Yengeni have had such an opportunity? In theory, the answer should be yes. In reality, there are not many people who could have afforded this expensive process.  There seems to be some truth in the saying that ‘the law favours the very poor and the rich’. The case in point is that of a person that is not poor enough to qualify for legal aid and is also not rich enough to afford the costs of a lawyer of his/her choice.

 

Access to justice, therefore, is influenced by an individual’s access to resources.  In order to deal with this inequality and in order to facilitate a fair trial, legal aid is provided for those who cannot afford legal fees. The problem with this approach is that it does not go far enough in levelling the playing field. Is this state of affairs, albeit unwittingly, producing one brand of justice for the rich and famous and another for the less fortunate?

 

Boyane Tshehla, Crime and Justice Programme, ISS Pretoria

1. ‘Sun Sets on Tony Yengeni’ by Mpumelelo Mkhabela, City Press.