Picture: Michael Walker
By Dr Wallace Mgoqi
The unfolding saga of the closure of bank accounts, the manner in which it has been done and the reasons advanced to defend the actions of the banks has prompted me to reflect on the subject of law and justice. But before I do so, let me start with definitions.
What is law?
Laws are written rules and norms that regulate the actions of citizens and of government itself, in all aspects. These apply to all states that decide to ratify certain treaties or conventions. National laws are principles and norms that regulate the behaviour of all citizens, (natural and juristic) under the government’s jurisdiction. Laws establish what citizens, business, and government can or cannot do.
What is justice?
Justice is a principle that may or may not be universally recognised. It may also be defined as the “quality of being just, integrity, impartiality; rightness; the awarding of what is due“.
This shows that justice can be perceived in many different ways from the implementation of laws, to moral and ethical norms and standards, and cannot be separated from other related concepts such as morality, ethics and compassion.
Justice is based on equality of rights, fairness, kindness, dignity, morality and ethics. In a just world we would not have discrimination, violence or gender-based violence, abuses or crime, poverty, inequality, slavery or human trafficking.
Ideally, all laws should be based on the idea of justice and all governments and the private sector, as well as the non-governmental sector, should enforce national laws in a just, equal and equitable way. Unfortunately, it is not always the case as laws are often broken, not respected and when enforced it is done in a biased and partial way. Justice is generally regarded as superseding national legislation and applies to all individuals without discrimination or partiality or limitations and the courts are custodians of both the law as well as justice.
The concepts of law and justice are often confused and conflated and misinterpreted by many people. While the two are strictly connected, they are not the same thing.
Similarities between Law and Justice
It is perhaps because of the similarities between the two that cause people to take them to be the same.
They are thought to be just and fair; these are the main similarities between the two:
- Both concepts regulate human behaviour and aim to create a more just and equal environment;
- Law should be based on the idea of justice and should be implemented and interpreted in a just manner – without discriminations, and bias in favour of one party against another;
- Both are based on the ideas of morality, equality, equity, or fairness and order.
Application to the South African scenario
By way of application to the current scenario involving the closing of bank accounts of certain players the stock answer of all banks has been that they have closed the accounts of the Sekunjalo Group and its subsidiaries, as well as certain persons associated with Dr Iqbal Survé, in compliance with prescribed norms and standards to obviate being taken out of the international payment system. Let there be doubt as to the imperative to apply the law, the issue is with the manner of application of the law. People ‘associated’ with Survé include his 82-year-old mother, who has been with one of the banks for over 50 years, his sisters, one of whom is a medical doctor with a practice of many years, as well as friends.
The application of the law is not questioned, provided that factually and evidentially there is a proper basis for doing so. The question that arises is whether the application of the law is done in a manner which meets the requirements of justice – in a fair and just manner?
The other matter to which all the banks had a stock answer, is the seeming differential treatment of a black-owned and empowered company like Sekunjalo (which incidentally was not found in any forum to have committed fraud, money laundering or corruption) as against white-owned companies like Tongaat Hullett, EOH , and Steinhoff (which were factually and evidentially found guilty of the above-mentioned transgressions. The stock answer is that these companies reformed themselves and that is the reason they seem to have been treated differently. It begs the question as to why this same grace was not extended to the Sekunjalo Group – at least after it was pointed out to them the specific offence(s) they had committed, if any at all?
Anyway, what reform steps would they have taken, when they were not told what specific transgression(s) they had committed? The closure of bank accounts, like dismissal in labour law, is fatal. A reversal of the closure of the bank accounts would never result in the reversal of the enormous damages and losses suffered by these companies whose bank accounts were closed.
Just in one case a company valued a month earlier at R300 million was sold at R20 million .
Which leads to the next issue in this saga: in criminal law, there can be no punishment without a full disclosure (in minute particulars) to the offender, as to what offence it has committed. It is for this reason that in litigation there is Rule for particulars to be provided by the alleging party, so as to enable the accused to defend themselves. Punishment always follows a full disclosure of what was done wrongly, and not otherwise. The full disclosure must answer, among others, answering the following questions :
- What offence is alleged to have been committed?
- Where was it committed?
- When was it committed?
- By whom specifically was it committed?
- Why was it committed – to establish the motive?
- Which specific rule or law was breached?
The extent of the breach committed, as punishment, at all times, has to be proportionate to the offence committed. Punishment must fit the crime.
It is only after these questions have been adequately and satisfactorily answered that punishment may follow, otherwise it is a (non sequitur) something that does not follow, for punishment to be imposed before a breach is proven to have been committed – it is a miscarriage of justice.
There is a sense in which in this saga there has been an obsession with upholding the law at the expense of justice, whereas justice trumps the law.
Laws are created by politicians and other such legislative forums after long processes of checks and balances and can be approved or not approved by the country’s population.
Whereas justice is not created: it is a broad concept that unites universal ethical and moral standards. Although it is not universally recognised, the idea of justice is based on values and principles that are intrinsic to the human nature. Justice resides in the bosom of all human beings, regardless of their status in society. That is why we feel it in our bones when justice is done, as well as when injustice is committed. It is as if we can see it with our eyes, yet it is invisible, and it is there all the time, staring us in the eye.
“Justice must not only be done, but must be seen to be done.“
The Oath or Affirmation of Judicial Officers in South Africa makes the distinction between law and justice clear as it states, in terms:
“I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.“ The Constitution or law is juxtaposed with justice.
Nothing could be clearer than that justice is one thing, and the law another, different but related concepts, as articulated above. Where the tyre hits the tar, however, is in the enforcement of the law, in a manner, which is not oppressive, but equal and fair as between those involved. Too much reliance on what the law says to the exclusion or minor concern for fairness, impartiality, integrity, could result in well-intended goals, but in a miscarriage of justice.
It is important that law and justice must be seen to work hand in hand to inspire citizens with confidence and the assurance they will always be dealt with firmly, fairly and justly. It is also at the heart of the Rule of Law, which is another huge topic requiring its own time.
Mgoqi is the chairperson of Ayo Technology Solutions Ltd. He writes in his personal capacity.