Dr Death - Double Jeopardy?? No, Quadruple Jeopardy!!!!

 

Roman slavery culture prevails our justice system

Constitutional Court CCT 30/03 - State vs. Basson – analytical errors

 

Judgement was handed down in the aforementioned case concerning Wouter Basson, referred to in media reports as “Dr Death”, who was accused & tried on various & numerous Apartheid & other crimes.

The full transcript of the CC judgement is available on their website www.concourt.gov.za.

There are many issues canvassed in the judgement which give cause for concern regarding the processes adopted by the CC in hearing matters between parties without the full knowledge or understanding by even well-qualified persons of the public. Consequently our Constitution, developed through negotiation and using plain language, is being purposefully interpreted in ways that a reasonable man would not understand.

The section of the judgement concerning “Double Jeopardy (DJ) is used as example – Para’s 61 to 69 inclusive of the judgement.

An overview of some crucial issues are needed to give clarity herein.

Most, if not all, 1^st World justice systems derived from Roman law, primarily 1^st Century BC to 4^th AD, simply because the epicentre of structured civilisation spread from this region, on the back of the previous three century Grecian Seleucid & Ptolemaic empires. Roman society was such that every 2 out of 3 persons were in slavery or some form of forced servitude, in which human rights were scant.

Present day legal persons (it is implied that reference is to “free” 1^st World) take much pride in using Latin in their “legal-speak” so as to impress the current justices; who in turn laud these persons with praises that convert to real monetary income simply because they “win” cases. Upset the justices, and a legal person would start to “lose” cases. A very effective economic weapon-of-mass-justice-destruction, which has created 1^st World justice systems & courts that are controlled by a collective body of persons that can be truthfully described as an exclusive club.

Para 61 of the Basson judgement clarifies the point of the usage of Latin and Roman law principles which have both become part of “legal-speak” language and “common law” in most, if not all, 1^st World countries.

The Constitution was developed to solve problems that existed within SA in the final years of the 20^th century, prior to embarking upon the 21^st century; yet we are baggaged with ancient BC ideology.

The judgement (in this section on DJ) summarily relies on the common law principle of DJ, which stems from English common law stemming from Roman law, as the basis for developing its conclusion vis: that the common law principle of DJ is well founded & long established.

Practical perspective needs to be given to this.

Already mentioned is the problem that society does not get to know of the CC judgements because;

• our courts talk in “legal speak” which includes an ancient language (Latin) which is not part of SA’s Constitutional make-up.

• Legal processes are lengthy and private persons don’t have the time to spend their days listening to argument simply to be able to contribute, if so desired, argument on particular points

• The media do not report adequately or correctly or truthfully a clear synopsis of the issues to allow persons to understand sufficiently to make meaningful contributions to the debates

• The CC does not have on its website a clear synopsis of the legal issues which again would allow persons to understand sufficiently.

Consequently our Constitution which was developed in plain language is now distorted by interpretations solely from legal persons in “legal speak” language.

Further these legal persons do not represent the “reasonable man” concept (see Para 52 of judgement) because practicing their profession within their exclusive club they operate in an entirely different world from the rest of society from which the reasonable man notion derives.

Reiterating that legal persons are effectively restrained from pursuing justice causes as effectively as a private individual, simply because of undue economic pressures, and adding the immediate aforegoing issues it can be immediately seen that the Constitution has been emasculated.

It is intuitive that if analytical or design flaws creep into a motor manufacturing plant that the probability is high that defective vehicles will roll off the line. If an oil filter is missing, and red warning lights ignored, the engine will catastrophically destruct within a short period of time.

Analogously, if filters within our Constitution are left out, and warning signals ignored, then likewise SA’s societal system could also catastrophically destruct.

Section 38 & 39 of the Final Constitution are perhaps the two most important filters in our Constitutional societal system. It is with regard to these filters, and particularly S39, that the CC erred gravely in its analysis in the Basson matter

With the aforegoing in mind the analytical error/s of the judgement concerning DJ are now addressed.

Referring to Para 52, and flowing on to Para 53:- “the social judgement of the court” is attained by applying “common morality and common sense”.

This concept was omitted from the analysis on DJ, as can be seen by the summary conclusion that the common law principles, derived from English common law & Roman law, are well founded & long established. Common morality & common sense did not enter the debate on this point. Objectivity does not preclude these important values, these values must by necessity be inherent to any objective determination.

It is also important to note that objectivity changes with time, simply because societal values change - assessing issues objectively through the window of Roman slave culture environment would yield distorted results in our 21^st century Constitutional environment. Thus:- a social judgement based upon common morality and common sense and objectively applied.

But! We, in our 21^st century Constitutional environment, are being subjected to “objectivity” that is being viewed through outdated, ancient, windows. Which is the basis of the erring by the CC.

If objectivity lags social development significantly then warning signals become observable. It was seen under Apartheid. We see it currently in Zimbabwe. In both cases the warnings were ignored. The result? Both societies catastrophically destructed

Consider.

Final Constitution (FC) – Bill of Rights (BoR)

S39(1) FC – “when interpreting the Bill of Rights, a court, …., (a) must promote the values that underlie an open and democratic society based upon human dignity, equality and freedom.

S39(2) FC (Final Constitution) “When interpreting any legislation, and when developing the common law or customary law, every court, ….., must promote the spirit, purport and objects of the Bill of Rights (emphasis added).

The words “must promote” can only be achieved through social judgement, being objectively applied, by the courts using common morality & common sense , as prevails at that time.

Consequently the issues on DJ by the CC were not correctly analysed.

The purpose of DJ is to protect both parties - the accused, and the people (represented by the State).

• The accused needs to be protected to prevent abuses from multiple trials on the same grounds – common sense argument.

• The people need to be protected in two ways

  • First by confidence that a person rightly accused receives a just trial which will (hopefully) produce a just outcome that will prevent the accused from further endangering/harming the people, and correcting (hopefully) that persons behaviour

  • Second by protecting the people, individually & collectively, from abuses of power by State Authority persons which have the effect of silencing valid voices of dissent.

DJ was of particular importance in the past when a mans life was at stake, and the maxim was entrenched from that point. But even mediaeval England’s social structure was essentially serfdom or earldom, little in between.

Today’s modern 1^st World society is completely different, and accordingly the inference of “jeopardy” has a completely different connotation.

The mere fact that a person is arrested can have immense consequences upon his life. Social gossip, worse still – media trials, can destroy a persons social/business/economic life within a short span of time.

Within such a complex society DJ therefore requires the development of a more broader interpretation, as envisaged by S39(2), of developing the common law. The CC was in error on this aspect.

The judgement at Para 62 – the CC states that an accused can rely on S35(3)(m) as a consequence of the pleas provided for in S106(1)(c ) &(d) of the Criminal Procedures Act (CPA)

At Para 63 (loosely restructured)- “Once an accused has pleaded a charge, he or she is entitled to demand to be acquitted or convicted” … “S324 of CPA provides that an accused person my be recharged for the same offence … where a conviction or sentence are overturned by a review or appellate court on the grounds that the court lacked competence to convict the accused; or the indictment … was invalid or defective, or (contained) some other fatal defect in the procedure”.

S35 FC (Arrested, Detained and Accused Persons) has been incorrectly interpreted by the CC in respect to the aspects of DJ.

Objectively applying “social judgement” through “common morality & common sense” in today’s environment, it is logical in the greater majority of instances that a person is:-

• arrested because of suspicion of a crime,

• detained because of

  • the arrest:- temporarily whilst a court determines the seriousness of the crime in relation to the prospect of bail

  • the arrest or conviction:- permanently or more permanently depending upon conviction or bail hearing

• accused because of belief by the Prosecuting Authority in that persons guilt.

Jeopardy for an individual commences from the point of arrest and increases dramatically with each successive step taken by the State. It reaches its climactic point when the person is accused. That climactic point is when a charge is first formally set out to that person; it is when the Prosecuting Authority, in writing or orally, states that the person stands accused of a crime. Jeopardy is thus fully experienced long before a plea is called for.

Consequently the limited interpretation of the concept of DJ, derived from medieval English serfdom common law, which is derived from the ancient Roman slave culture law, does not correctly reflect the full experience of jeopardy. Thus the limited interpretation has no place in our 21^st Century Constitutional framework. The CC was in error in their analysis of this concept, because they erred in not applying the S39(1) & (2) filters.

It follows therefore that Double Jeopardy flows from the climactic point of being accused for a second time on a charge for which he has been previously accused & processed.

The BoR sets out the rights of an accused person; and his rights flowing from the state in which he finds himself of being accused is the (S39(3)) “right to a fair trial, which includes the right…” – i.e. it is not limited to the rights which follow thereon. The common law & the BoR must be interpreted in such a way that it must promote the underlying values, spirit, purport, etc. of the BoR.

It must also be borne in mind that it follows from the rights of an “Accused” person that a person has an inherent right not to be falsely, groundlessly, or maliciously accused

S35(3)(m) (the DJ clause itself) is a right, couched in negative terms, which identifies that category of persons that cannot be tried. This clause is contrary to the main thrust of S35(3) which concerns stated terms as to what minimum conditions constitutes a fair trial.

It therefore follows that S35(3)(m) is, directly, a right of the accused and not, inherently, a protection of the process of a fair trial in itself, to which the accused has a right flowing from the condition he finds himself in.

Again; objectively applying social judgement through common morality & common sense it follows that a person who has been accused once cannot be accused again of the same offence.

It must also be borne in mind that the State has, economically, and relatively speaking, unlimited resources at its disposal in dealing with any prosecution. It can afford qualified attorneys & advocates who are well trained & inducted into the State’s systems.

S324 CPA is couched in terms that encourages negligence on the part of States staff – i.e. if a state employee messes up, so what – give it another go. Unacceptable!

The accused however has limited resources, if resources at all, and invariably cannot afford a first stage defence let alone a second stage.

Clearly therefore, in light of the State’s resources & skills availability the verbatim reliance upon S106 (1) (c ) & (d) and S324 by the CC without first filtering it through 39(1)&(2) FC was in error. The more so in light of the limited analysis the CC did, and the consequent defective precedent it has set, on DJ.

S35(3)(m) FC “not to be tried …… previously been either acquitted or convicted”

Again the CC erred in not analysing this section correctly in light of the DJ issue which is essentially what the clause is about.

Applying S39(1)&(2) again and bearing in mind the circumstances surrounding the development of firstly the Interim Constitution and then the FC:-

- it is true to say that SA was a cause for world concern, and seriously so, during the early to mid 90’s when the IC & FC were being developed. Tensions were high and pressures were mounting to bring finality to the FC. The FC was couched in plain language with obvious legal terminology implied, but with the emphasis on “developing the nation” and “Bill of Rights” culture.

Therefore cognisance must be taken of the limited structure of S35(3)(m) and in particular the limited use of the words “acquitted or convicted” when applied to the rest of the Constitution, and to the legislation that existed then, & the legislation that exists now.

If one looks at the Prosecuting process from a “systems” perspective it becomes clear that too narrow an interpretation of “acquittal or conviction” is in itself unconstitutional.

The Constitution provides for further protections to an accused person to minimize the damages, jeopardy, he is likely to suffer if falsely accused – these are provided for, for example, in S179(5)(c )&(d) concerning the Prosecuting Authority and their obligations thereto.

The import of this section allows an accused to discuss directly, orally and/or in writing, the charges on which a person is accused. Negotiated settlements can flow from these negotiations, and it is possible that matters/charges can be withdrawn by the Prosecuting Authority. It can also be that a court orders that the matter is withdrawn by request of the Prosecuting Authority.

It is submitted therefore that, when read through a S39(1)&(2) filter, a withdrawal, or quashing, of a charge has the same import, legal result, as an “acquittal” as set out in S35(3)(m).

This interpretation places a necessary but reasonable onus upon the State to do their jobs correctly, first time. Which is what persons in the private sector are reasonably expected to compete for.

But recourse to S179(5)(d) is not limited to the accused person; the complainant can make use of this section as also can any other person including a subordinate prosecutor. But it is contended that it must be before a charge is put to the person which thus creates the state of an “accused” person; at which the climactic point of jeopardy is reached – the accused is “branded” - whether acquitted, or convicted, or withdrawn, or quashed, or whatever. The “reasonable man” reasonably expects that the State Authority person is doing his job lawfully and that a real risk of prosecution will follow, with the inherent & reasonable belief that a conviction could result, rightly or wrongly; and with the full reasonable belief that even an accusation will impact upon his social standing & economic well being. He is in jeopardy, fully experienced, from the moment of being accused.

It is therefore respectfully submitted that the Constitutional Court erred in the analysis of Double Jeopardy under CCT 30/03

In particular the conclusion in Para 67 “The accused did not plead to the charges that were subsequently quashed and was therefore never in jeopardy of conviction upon them” is in error.

The error also pertains to all charges that the PA intend to level against the accused for a second time

The aforegoing result (relating to DJ) would have an obvious impact upon the CPA, creating a need to redesign processes. But this is not a difficult problem to overcome if sound Business Engineering input were applied.

It is also important to note that when considering other foreign or international law that those other foreign countries do not have protective filters in their Constitutions, assuming they have a transparent, accessible, readable, understandable Constitution.

The urgency though of a rethink & redesign of the CPA is far more pressing considering the reality of accused people living in dank, dark SA cells, for years at a time whilst awaiting their Constitutional BoR to have their trial begin and conclude without unreasonable delay.

Ironically, the State’s obsession with Dr Death perpetuates one of the very abuses - the denial of the right to a prompt fair trial - that caused some of our current State Authority persons to take up arms to rectify, and in so doing probably committed similar evil deeds.

The CC has also erred by not correctly applying the S38 and S39(1),(2), & (3) filters to the CPA holistically.

It is reiterated:-

1^st World justice systems are destructive within 1^st World environments, they are catastrophically destructive within 3^rd Worlds!

The truth is that Warrants of Arrests or Criminal Summonses, with charges set out thereon, are issued with greater frequency than Tazzo’s by Simba chips. The State’s lucrative Speeding-Fine-Camera-Trapping industry is a case in point of the justice system being log-jammed. Awaiting trial detainees, retrial accused persons, in Double Jeopardy?? No, Quadruple Jeopardy!!!!

 

Sincerely

 

Chris Addington Pr.Eng.,