JUDGES: THE IMPORTANCE OF UNDERSTANDING LIVED REALITIES AND DISCARDING THE "CHEESEBOY MENTALITY"

(Please Note, this was written two years ago. It appearing here is like a remastered version of a Movie or an Album from the 90s.

Further note this isnt a critism to the judge who adjudicated on the case. I possess huge respect for the honourable judges of our courts, brilliant individuals)

The blog post topic really explains the jist of this post. From a couple of cases which i have engaged with, i realised that some judgments are based on very strict, lack of understanding of the everyday and just straight "cheese boy mentality". My legal commentary will be mainly based on the case of S Tuta. The commentary will be fonded on the opinion that its has happened in a couple of cases that judges appraoch a matter from a "closed from the world" approach. And approach which has little regard to the lived realities of peoples everyday.

Now before i kickstart this, i just to mentioned that in no way am i critizing or disparaging judges for the work they put in. I am in way spitting on the profession of the adjudicator. I respect the work and journey that it took for these legal servants to reach a point where they are seating on the bench. So non of what i will be saying must be construed as a jab or criticism towards judges. I am merely providing a commentary on what i took out from reading the case in question

1) The S V TUTA ISSUE:

The issue which was at the forefront of this matter was whether the accused killed A and attempted to kill A2, and the intention to do. The facts of this case is one which my brain had fun painting the picture of the whole situation. Mind you this is real life but as legal practitioner i believe that we have to exercise some imagination and creativity in how we engage with real life situation which have found their way into the legal arena. So with that being said, i enjoyed using my imagination in formulating this story. It felt like reading a book. 

(Back to the programme)

2) THE FACTS OF S V TUTA:

So this story begins with two brethrens and two police official having an encounter which changed their lives forever. So it begins, two police officers petroling the streets of sunnyside pretoria, in an unmarked car and civilian clothing. They do their rounds, and boom, police officer A sees two bruddas and sees one of them hiding a laptop in his jacket[ This isnt common cause, its the version of officer]. So yeah he sees one of the bruddas hidding the device and the officer begins to suspect that, that brudda has just hit a lick and is now hidinh stolen property. Oh before i forget to mention, the two bruddas are students from the university. Cool, the police give chase and bam, the two student dudes start haul assing. They lose the police and a moments later, the two officers lock on their location and they give chase again. They one of the mandem(Being the accused) and they pin him down on the floor. Now while on the floor, the police version is that they informed him they are police and showed proof of this, and the version of the accused is that, that never happened and dudes where sprouting profanity in a langugage he didnt have a grasb on. So boom boom, Tuta( which i will refer as T) while pinned on the ground on some george floyd action(RIP George Floyed), one of the officers, A2, decides to go the car and grab some handcuff. Now the car in question is a red polo. If you know anything about these cars in south africa is that these cars are the most stolen and are one of those cars used in the commission of unruly stuff because it got some speed in it. Aight cool, A2 officer leave the perp with A1 to go get cuff and then boom T, fearing for his life, draws his switch blade knife(also known as an 'okapi') from his pocket and and stabs officer A1 right on the eye socket, basically killing him. A2 reacts to this change of events and charges to T. But T, due to all the adrenelin and stress, reacts quicker than A2 and stabs him on the temple of his skull. After the knife work, T runs of and asked for help from some security guy and recieves no help. This is Sunnyside, not the friendliest place to be at night, its actually a shady place with shady characters comming out to play at the night time. Boom, upon being denied help from the security dude, he runs to his flat and calls his sister and relays everything that happened. The following morning they go to the police station to report his ordeal and was turned away because he didnt known who attacked him. On the other frame, the two officers are in hospital. Officer A1 succumb to his injuries and died and officer A2 was suffered serious damage but it was not his time. Then later that day of T reporting his situation and how he was attacked and almost kidnapped by dudes in a red polo, police pull through to T's apartment and they arrest.

T was charged with the murder of A1 and the attempted murder of A2. Dude was a second year law student and he was now facing a whole murder charge and attempted murder charge.

3) THE ARGUMENTS S V TUTA

Trials begins. Councel for the police argued that T had all the intention to murder A1 and A2 as he was in trouble and wanted to evade the police. He knew that they were police, because he was told by A1 and A2 that they are police and that he was stop. And that the police showed his police identification. Therefore with that, he had knowledge of what was happening to him and he stabbed the police officer in order to evade capture. 

The councel for T argued that T had no knowledge that the two men where police officers. He saw a red polo chasing him, he ran and when he was caught, the only thing that was bombarding his mind was how he was about to be hurt bad and kidnapped as he was about to be put inside the red polo. The councel argued that the two men said nothing to T about being officers of the law, and even when they did, they did not show police identification as they claimed they did. T acted in order to preserve his- in legal terms he acted in self defence.

4) THE LAW S V TUTA

Just to be brief on the law applicable in the arguements. The arguements of the state is premised on the belief that T murdered A1 and attempted to murder A2. The elements of murder which the state needs to prove beyound reasonable doubt is : Mens rea(Capacity; Acteus Reus(Wrongful+conduct) fault(intention) and causation of the harm. 

The argument of T is fonded on the law of private defence- also know as self defence. This defence negates wrongfulness and an enquiry into whether the accused had intention to kill must be determined.

5) THE JUDGEMENTS HIGH COURT AND CONCOURT:

Now the high court gave the brethren the book. Found him guilty on both the murder and attempted murder charge. Gave him life sentence and 15 years respectively for the murder and the attempted murder. It was not a great sentencing hearing because basically he caught that time cause his background was good, he grew in a good family and how could he do such a thing yet he grew up good from a good family. I didnt understand that, yeah the principle provides thats one of the factors to be looked at when sentencing bruhs is the circumstances of the condemned. The are other factors which they considered but the factor of him coming from a good family and therefore deserving the book he got rubbed me the wrong. Rich, poor, sane, insane, everyone is capable of doing demon time acts. Christian say 'its by the grace of god' and they are right, it is legit by the grace of god why you sitting right here reading this has not found yourself in a situation where you find yourself taking someone's life. But yeah high court gave him serious number after finding him guilty.

T tried to appeal, but was denied. Tried the SCA  and was denied too. Then went to the Concourt, and leave to appeal was granted by the Concourt. Reading Concourt judgment is always seems like a well constructed novel, like reading a Murakami book. Anyway, the Concourt grants the leave to appeal, looks at the papers , hears oral evidence and finds that the the trial court made an error in law in the way it applied the test for putative private defence.  It found that error would be detrimental and prejudiced to T and that if it was left, T would be facing a serious life ahead of him. The court went on to set aside the High court judgment, and granted the order of the appeal to set aside conviction and aquitt the mandem T.

6) THE LEGAL COMMENTARY:

Now first thing which i am very opinionated about my take aways from reading this case is that there sometime is a tendency of judges taking a strict approach in matter which requires understanding the full context. By full context, i mean, understanding the everyday lived realities of people. Its sort of like a "cheese boy" mentality whereby one views the world in insolation from what the world is actually like beyound those boom gates and high gated fences. One of reason the court foward in finding T guilty was that his version is no way in hell true. Like there is no way, that T was facing an attack from people who he thought had serious bad intention towards him and that his actions are a product of that belief. There is no ways that police did not tell T that they police officers and also no way that the officers did not show T their badge. There is no ways that T in the not so safe streets of sunnyside at night, did he think two people in a car popularly used in commissions of crimes was scared that his life was in danger. To me the court approach this matter like that. It was as if the court did not know, or was not privy of the reality of south africa, which is SAPS has some 'dirty apples in the bunch'. That SAPS is really not an institution which has given one confidence that they are about to be protected by the police. Given the fact that the only evidence basically which was led on oral was that of the surviving officer. And the court took that and evaluated it like south african police officers are not corrupt, or liers. This is in no way throwing mud at the two police official involved in this case. RIP to the officer that has taken rest in the heavens. All am saying is that some of the courts reasoning was so out of touch with reality of the everyday of people that it seem to have blinded the court to the fact that kidnapping and having your organs harvested for profit or even harvested to be used for dark shit is a reality which looms in the lives of everyone in south africa, especially in places where alot of shady activities and vibes exist. 

I believe if the court understood what it means to be in sunnyside, at this day and age, at night. How that looks like and the possibility that comes with that experience, then maby the sentence would not have been has hard as it was. Maby even the conviction would not have went the way it went. Because understanding what it means to be out at night in an area like sunnyside, would have created some reasonable doubt about the criminal liability of T. And thats all T needed to be acquitted, just that reasonable doubt.

I am not a judge or that experienced in the legal field, actually i have zero experience. But just from reading the facts and checking out the versions, there is no ways anyone could have been sure that T was criminal liable on the charges brought against beyound a reasonable doubt. You got a 2nd year law student, a red polo, two dudes chasing you out of no where, no police badge or police unform on sight and all is happening in Sunnyside- there is no ways anyone is 100% sure that the student committed the murder and attempted with the intention to do so. 

Yeah the approach gave me a "cheese boy" vibe. And this isnt the only case where i left the court displaying a little lack of understanding of what is actually going in South Africa. In the AK case[ this case has made me have a love hate relationship with the criminal justice system- but thats a topic for another day]. But yeah, the AK case involved the court having this unshakable belief that police tend to follow procedure to the T and that south africa police force are scouts that do things by the book all the time. This is mzansi, and if you pay attention you would notice that those tasked to protect us and guard our best interest tend to be on the news more for now so great stuff as compared to being in the new for executing their mandates as tasked by the constitution. 

CONCLUSION:

In closing, i feel that the law, although more accessible to the people as compared to pre-94, there is still a long way to go before the law is in tune with the realities of the people to a point where its enforcement has a high efficiency in proper application as compared to what it is now.

From me to you, i wish you nothing but love, peace and justice. Love yourself, dont be too hard on yourself. Keep it moving

Disclaimer

The views and opinion expressed are those of my own, based on my own experiences and my subjective interpretation of the subject matter. They are not authority nor should they be construed to be authority. Do your research, read further, gain knowledge and do what you want with it. Non of the views expressed herein are legal advice. Always seek a legal practitioner for your legal problems