Читать книгу South African Law - François Smuts - Страница 6

How old is the law? As old as humankind itself. There isn’t a history of a nation that isn’t also a history of the rules of how people interact with each other: what you may and may not do, and what the consequences are of breaking the rules.

The law is not just old, it is as broad as daylight. There isn’t a country that does not have a legal system and that legal system develops as society develops. We live in an incredibly complex society today that is intertwined with the rest of the world as never before.

Now, you would expect that a judicial system would usually cause the “just” in “justice” to prevail, especially in a highly sophisticated legal system like ours. But I have to explain to astounded (not to mention angry!) clients from time to time that one may not be able to fault a judge’s judgement from a legal point of view, but that doesn’t necessarily mean that a fair outcome has been achieved. This is the case for a number of reasons.

The first is that there is an incomplete overlap between the generally held view of what is fair and what the legal system of a particular society upholds as fair. An excellent example of this is the death penalty. Many South Africans would like to reinstate the death penalty if they had the choice, with much of society regarding it as acceptable and right. However, when the Constitutional Court, which is supposed to represent society’s ideas of justice, got the chance to rule on the matter, it shot down the death penalty in flames. Why? Because it is in conflict with the Constitution and is therefore illegal.

You may ask where the Constitution gets its moral authority from, but that is a subject best left for another day. The point is that the view of the majority of people does not always find its way into court judgements.

One must also remember that most judgements are given by a single justice official with his or her own ideas of what is fair, particularly so in a given situation. That idea does not necessarily correspond with your opinion or mine, or even the opinion of the majority. I remember, for example, a magistrate who gave lenient sentences to those she found guilty of burglary – until her own house was burgled. After that, woe betide the burglar she found guilty!

Furthermore, we must remember that the main purpose of a legal system is not to achieve a fair result in a specific case. The purpose of a legal system is to settle disputes in accordance with the established legal principles and the rules of society at a particular point in time. Ideally, the correct application of the rules will lead to a fair result, or close to what is a fair result in a specific case. For example, you cannot use evidence obtained by torture against an accused in a criminal case. If such evidence were used to find a person guilty, the sentence would be reversed on appeal. Disallowing this evidence would therefore lead to an unjust ruling (in the sense that a guilty person could be found not guilty), but the fairness of the legal system in its entirety would be maintained.

Ultimately there is one legal principle that, more than any other, ensures that our idea of justice is not compromised: audi alteram partem, which has nothing to do with the parts of an alternator in an Audi. It is an idea thought up by St Augustine and it contains a profound wisdom. Literally translated, it means that the other side should also be heard. In English, we would say that there are two sides to every story. Let me explain.

People usually come into my office with a fixed idea of who the villain is in the piece – and it is seldom them. Often they talk about a “guilty” person as if the opposing party has committed a crime, even if the matter is a contractual dispute. One even finds legal practitioners who swallow their clients’ stories hook, line and sinker, and defend their client’s cause as if it were their own. However, most legal practitioners who have been to court a few times know that different people can view the same facts from widely differing perspectives and that it is quite possible that their client has the wrong end of the stick. Often the judge hearing a case has no way of knowing what the “true” story is. What’s more, the judge has to seek the truth between two stories that are often diametrically opposed. Was the traffic light red or green? Was the contract ultimately concluded or not? The judge then weighs up the probabilities of the opposing versions in order to decide which one is going to be accepted. A judge is compelled to do this, as it is usually simply not possible to state without doubt that one party is lying and that the other is telling the truth.

In a criminal matter, for instance, the test is for the state to prove its case “beyond reasonable doubt”. This means that a judge cannot have “reasonable doubt” as to whether the accuser’s story is true. If the judge finds against the accused, it means that there is not a reasonable possibility that his story is true. If there is even a reasonable possibility that the story is true, it must be accepted (regardless of whether the judge believes it or not) and this usually means that the accused is acquitted.

Has justice prevailed in such a case? Often not, but the principle is aimed at preventing an innocent person being found guilty just because he has an unlikely story about what happened. Now I have often heard an accused (especially in the case of politicians) who is acquitted of criminal charges, proclaiming loudly after the court case that he is “innocent”. This is not entirely correct. The legal system could in fact simply not find him guilty. This is audi alteram partem in action: necessary but not always fair.

Another way of looking at the same issue is to place justice and fault under scrutiny. For Calvinists, it is often difficult to understand that something can go wrong and that you can obtain a judgement against a person even if nobody is at fault. The fact of the matter is that, except in criminal cases, the law is not concerned with fault, or guilt, as theologians understand it. In the case of everyday disputes, such as whether a contract was concluded between two people and what the terms were, fault is not an issue.

Sometimes the issue of fault is discussed, particularly in the context of the law of delict. Briefly, the law of delict deals with the damages suffered because of negligence. Negligence is a form of fault, although when we talk about fault here, we are not necessarily placing moral blame on someone. In the context of negligence, someone is at fault if they deviate from the standard of the “reasonable person”. If the issue of negligence arises in a case, one would ask how the hypothetical “reasonable person” would behave – the person who behaves correctly in every situation. Would the “reasonable person” have gone through a stop street? Would the “reasonable person” expect someone wearing dark clothing to be lying in the middle of an unlit road? If the answer to any of these questions indicates that your behaviour deviated from that of the reasonable person, even if only by 1 per cent, then there is “fault” in the form of negligence on your part.

A good way of illustrating this is by looking at motor accidents. Anyone who gives the matter some thought will agree that most motorists do not drive like the “reasonable” motorist most of the time. We talk on cellphones or send text messages, shave, eat, turn round and shout at the children, admire pretty girls in cars driving by, or are lost in thought about our day at work. Are we “at fault”? Yes we are if you compare us with the superhuman “reasonable” driver. However, your sense of justice tells you that this is the way people are, that we cannot be perfect all the time. On long journeys, it can be difficult to concentrate throughout. And if you have an accident, then along comes the legal system with its fastidious fault-finding enquiry into your behaviour to decide if there was negligence – fault – in the way you drove the vehicle. Why? For the simple reason that someone suffered damages and someone will have to pay for it, and the law seeks to identify that person. Is it, however, an enquiry into what is fair or just? In most cases that legal practitioners encounter, the answer is no, and even in the few instances where there is such an enquiry, the question is one that may range far and wide.