The courts persist in ignoring the master-servant dynamic that still exists in our unjust society.
The harsh sentencing of the co-accused of Johan Kotze – dubbed the “Modimolle Monster” – in July raises the old question of whether justice can be blind in an anti-black, racist society.
Kotze and three black men – Andries Sithole, Pieta Mohlane and Frans Mphaka – were sentenced to many years in jail (including life sentences) for the kidnapping, rape and attempted murder of Kotze’s former wife, Ina Bonnette.
Kotze and Sithole got another life sentence each for the murder of Bonnette’s 19-year-old son, who was killed on the day of the gang rape.
The crimes are admittedly indefensible. Our country is saturated with violence against women and children.
But we are obliged by our sense of justice to ask: Did the three black men deserve to be punished as harshly? Are our courts blind to the historical fault lines of race, class and gender?
Do our courts and law recognise power relations, or we are all indeed equal before the law, even if in real life we aren’t?
What does this blindness to social power dynamics mean for the administration of justice?
The Legal Aid Board seems sufficiently puzzled to consider lodging an appeal against the sentencing of the three men. Kotze’s sentence seems well deserved.
It’s hard to see why the court didn’t take into consideration the testimony of both Ina and Rex Bonnette, the biological parents of the murdered 19-year-old, and that of the three black men.
Rex told the court Ina had related to him how his son was murdered. She told him that Kotze forced the men at gunpoint to rape her – “If they didn’t rape her he would shoot them.”
The three say they were terrified of Kotze and they faked raping Ina.
To understand how three black men can be forced by a single white man to commit such acts, one has to appreciate the power relations of blacks and whites in a racist society.
A case can be made that the three men, in the face of Kotze’s power over them, had diminished capacity for culpability. Their agency as human beings was compromised because their association with Kotze was governed by racist power relations that rendered Kotze the master and the three men slaves.
Kotze, as master, had the power of life and death over them. The power relations of farmworkers and farmers in South Africa are based on slavery and overdetermined by violence, which is normalised.
A farmworker finds it almost impossible to open a case at a police station against his or her master, let alone face the master in court.
In the imagination of blacks, and especially farmworkers, the criminal justice system is already biased against them. This was true for pre-1994 South Africa and, by and large, remains true today.
Our courts and our law are blind to the weight of 350 years of systematic anti-black racism, which created racist power relations.
Our laws are imbued with liberal Western notions of the sanctity of the individual, which extracts the individual from his or her lived social milieu. The result of such abstraction can only serve to perpetuate the racist status quo in the name of equality for all.
The unjustness of the law in racist societies is shown, too, by a previous sensational case – the “lion case” in which another farmer, Mark Scott-Crossley, was sentenced to life imprisonment in 2005 for the murder of Oupa Chisale.
Just like Kotze, Scott-Crossley was accused of instructing his labourers to harm Chisale, who had been in his employ at one time.
The two black labourers attacked Chisale viciously, then tied him to a tree and waited for their boss, who, on arrival, inflicted more harm on and threatened to shoot Chisale before throwing him into a lion enclosure.
Judge George Maluleke, before whom the Scott-Crossley matter appeared, demonstrated a better grasp of the racist power dynamics of our society than the judge in the Kotze case.
Maluleke sentenced Scott-Crossley to life imprisonment for murder and his co-accused to lesser sentences.
Maluleke, in sentencing Scott-Crossley, said: “It is a known fact that in general the nature of the relationship between farm workers and farm employees is characterised by docile submissiveness on the part of the servant and a domineering and overbearing attitude on the part of the master.”
He went on to indicate that, having observed them in court, he was “satisfied that they are all typical farmworkers”.
After this judgment, Scott-Crossley went to the Supreme Court of Appeal.
To read the appeals court’s judgment is to torture oneself with anger and total disbelief at the ignorance of our learned judges.
First they heaped praise on Scott-Crossley, who had an “unblemished record”, despite his having been found guilty of another assault.
The appeals court went on to say Scott-Crossley was “a useful member of society upon whom some 100 people and their families were economically dependent”.
The appeals court criticised Maluleke for recognising the master-slave relations between Scott-Crossley and his workers. They said such reasoning had no foundation in law.
Here we see that the strict application of law can only lead to injustice in such cases.
The appeals court set aside Scott-Crossley’s life sentence and imposed a lesser sentence of five years, having dismissed the murder charge and altered it to “accessory after the fact of murder”!
In 2008, Scott-Crossley walked free. His slave is still in jail.
As in the Kotze case, for as long as Lady Justice remains blind to racist power relations, innocent people are fated to suffer.
Andile Mngxitama is an associate of the Anti-Racism Institute. Follow him @Mngxitama