‘Good morning and welcome to today’s virtual bus outing in our six-day nostalgia tour package. Today we are going to be taking a look at a few of Johannesburg’s colonially inspired architectural treasures, all of them filled with pre-democratic memories.
‘What we are sitting in our virtual bus and gaping at now is one of the few extant reminders of what was once known commonly by the term ‘due judicial process’. This is the old Johannesburg High Court, an edifice dating back to the 1940s. Once upon a time, this imposing building bustled with activity. Today, moths flutter silently through echoing halls and passages. In late 2019 this prominent seat of justice was vacated by the few remaining of the legions of people who once worked in it.
‘As a humble tour guide, it not for me to speculate on the abstruse motives for the gradual but implacable renunciation in South Africa of matters jurisprudential. Suffice it to say that the political will of the ruling party of the time helped to make the rule of law redundant, rendering the courts, their magistrates, judges and clerks impotent in their traditional roles. Of course, there were other factors, but the syllabus always came from above.
‘Historians cite one particular episode as being prototypical of a calculated withdrawal from the constructs of independent law. Around the turn of the century, a mass fraud was revealed to have taken place at the very seat of the government. A few dozen members of Parliament had pillaged their travel allowances to the tune of R90-million — a lot of money in those days. Most of these embezzlers occupied seats on the government side of the house. When the public bayed for retribution, the government smirked and set its well-practised delaying tactics into action. Cover-ups by dilatory parliamentary officials, obfuscation and adjournments, and accusations of racism dragged on for years, finally to the point where the courts had no option but to dismiss the charges brought against the errant parliamentarians. Two or three of these had been thrown to the judicial wolves in the way of token sacrifices. Found guilty, they were told to resign their seats. Other than these tokens, in a R90-million grand scam, right at the heart of the government, the due processes of law were all but totally by-passed. To the government of the time, the due processes of law were becoming an embarrassment.
‘It wasn’t only in Parliament. Generalised corruption was at runaway levels in the civil service. Very little in the way of retribution for this barefaced larceny got further than newspaper squealings. A process of ‘internal disciplinary measures’ ensured that civil service crimes were kept well away from scrutiny, let alone punishment by the courts. A leading government instrument for keeping crime out of courts was the celebrated Mushwana Protocol, whereby a ‘public protector’ was interposed as a way of specifying high-level public servants and their relatives as immune from the attentions of the law.
‘When it came to non-governmental crime, South Africa was a world leader. Murders occurred at unheard of levels. In 2012 it was estimated that a rape took place every 75 seconds. Car hijackings, burglaries and armed robberies ran riot. But an undermanned, underpaid and oft-times boisterously corrupt police force was unable to investigate and bring to court any more than a tiny fraction of the wrongdoers. Those cases they did bring were often so badly investigated, the courts had no option but to throw them out.
‘Increasing in their frequency were so-called plea-bargainings, pre-trial legal compromises undertaken with the commendable ambition of relieving the pressure on the courts, never mind prisons overflowing with those awaiting trial for up to four years. A lax bail system allowed many to escape justice. People accused of multiple child-rape or murder were set free on bail of a couple of hundred rands, never to be seen again; much to the relief of police delighted at a lessening in their paperwork.
‘Frustrated public prosecutors gave up and went looking for less dehumanising work in abattoirs. Gradually, law courts fell into disuse. Another contributing factor to their demise was that the greater body of lawyers had so ratcheted up the costs of their services as to make legal remedy available only to the very well heeled. For lawyers even more money was to be made with ‘on-the-steps-of-the-court’ settlements in civil actions where they could hack the money-flesh off several matters simultaneously. To such as these counsel, courts were unnecessary, unreliable and time-wasting. Prosecution or litigation for the dispossessed fell to kangaroo juries and the instant dockage of the gangs.
‘So there she stands, murky but yet with an air of remembered potency: the Johannesburg High Court. In its shadowed chambers, robed judges and advocates once deliberated, considered, argued and interpreted the tenets of long-established dogma. In old and solemn buildings like this one, crime was awarded its due punishments, civil complaint was heard and tested. Looking back, we can only wonder why so ingenious a system was allowed to atrophy.
‘Oh well, there’s always an upside. With the closing down of the courts, crime and corruption flourished, but at least the jails started to have some breathing space.”