Are we all equal before the law?

Chapter 2 of the Constitution of South Africa is the Bill of Human Rights. Section 9 (1), under the heading Equality, reads as follows:

“Everyone is equal before the law and has the right to equal protection and benefit of the law”

Over the years I have often felt that this is not actually accurate in practice and this proved to me to be the case for a friend of ours earlier this year. Before I give details of her issues and lack of ability to enjoy this equality, let us look at a few situations which have been in the news over the past few years.

Tony Yengeni – arrested in October 2001 and released on bail of R10 000. He was convicted of defrauding parliament. Yengeni entered Pollsmoor Prison on  24 August 2006, was immediately transferred to more modern Malmesbury prison, but was released on parole on 15 January 2007 — after completing a mere four months of the four-year sentence!  November 2007 – he was arrested for drunken driving. The case could not proceed because the blood sample was unfit to be taken for chemical analysis. The former Station Commander allegedly gave an unknown person access to the blood sample.  Yengeni’s parole conditions banned him from being away from home after 10pm and he was not permitted to consume liquor and yet he was stopped at midnight.

Schabir Shaik  – This case proved both fraud and corruption. Though Shaik claimed that his financial dealings were legitimate, on 30 May 2005, he was pronounced guilty of corruption. He was sentenced to two terms of 15 years for corruption and one term of 3 years for fraud, to be served concurrently. He entered prison on 6 November 2006. Within in 2 weeks he was admitted to the prison hospital. From there he went to a private hospital for 82 days and then to the very modern public hospital until he was released on parole on 3 March 2009. Shaik was released on medical parole (he was described as suffering from a life-threatening illness), after serving two years and four months.. There have been several accusations of Shaik violating the terms of his parole – including staying at Thanda Private Game Reserve for three nights in June 2009. The Department of Correctional Services said Shaik’s parole officer had given him permission to recuperate, in a luxury lodge. It is now 5 years since his release and he is alive and well, playing golf and doing the shopping.

Sheryl Cwele –  ex-wife of State Security Minister Siyabonga Cwele was charged, along with an accomplice, Frank Nabolisa, with ­trafficking drugs and the recruitment of drug mules. Frank Nabolis, was remanded  ­behind bars but she was granted bail. She arrived at court in designer clothes and with her friends supporting her. She was able to take her case all the way to the Constitutional Court with the support she received, both financially and emotionally. She has even had her sentenced reduced but Frank has not.  She had almost 3 years on bail before actually going into prison. Wonder how long she will stay?!

Oscar Pistorius – On 19 August 2013 Oscar Pistorius was officially charged with the murder of his girlfriend Reeva Steenkamp.  He was awarded bail with very stringent conditions. He appealed and these were reduced including he would be allowed to travel outside of South Africa to compete. The trial started in March 2014 but for various reasons has been postponed. Now, he is spending the month of June 2014 as an outpatient Weskoppies Psychiatric Hospital for assessment of General Anxiety Disorder. The ANC Women’s League members  are attending this trial in support of Reeva Steenkamp’s parents. His R5m home has been sold.

If I was on trial for murder, corruption, drug dealing etc and am aware that millions are watching/following my trial I think that I would have high blood pressure and would probably be very anxious. I imagine that thousands in prison or awaiting trial are hypertensive and anxious but cannot afford to fight the system for this.

There are other examples I could use, especially the trials of our President, Jacob Zuma, but I am sure that we all know sufficient about those. Then there is a very well-known case. That of OJ Simpson in the USA who has since announced that he would be happy tell Oscar how to win his case. That sounds rather suspicious.

If we look at the few examples shown here what they seem to have in common is good connections and/or lots of money. The only one who did not get bail was Frank Nabolisa, and why? Because he was a flight risk we are told. More likely it is that he does not have enough money or political contact. Then we have approximately 156 000 awaiting trial prisoners in South Africa of which about a quarter are children (under 18) who wait up to 70 days before coming to court. This is mostly because they have no money and are not connected to anyone who can help them.

And so I return to the young lady who was unable to use the courts. She was involved in a maintenance and custody dispute and went to a local lawyer. Unfortunately she was told that she would have to use an Advocate which would cost a minimum of R30 000. That was obviously out of her reach so she approached the law clinic at the local university. Her monthly income of R5700 was too high for this clinic and she was advised to try legal aid. This would mean a 6-8 month wait as they are so busy and are short of lawyers.

Clearly, in South Africa, all are equal under the law but there is no doubt that there are many who are more (or less) equal than others. It seems that those of us who are neither very wealthy or politically connected will get legal assistance at a price we can afford. And those who are really poor have no chance of being treated fairly. Even if they are given bail they cannot afford it and so are in jail awaiting trial.  Are we all equal before the law?

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