South African law, an expensive luxury

In 2004, Schabir Shaik, a businessman, was put on trial for bribing the South African President Jacob Zuma, accused of corruption and fraud. Shaik was sentenced to 15 years of jail (Politics). Two years later however, Shaik was released, allegedly “terminally ill.” Since then, he has been photographed playing golf and was accused of assaulting a man outside a mosque. He still lives today, even though according to the Guardian, the medical parole board said he was suffering from “irreversible kidney failure, a stroke, diabetes, heart and eye disease, and motor function impairment” (Malala).

In contrast, Xolile Mngeni, convicted of kidnapping and killing a tourist, died from brain tumour in prison in 2010, denied medical parole despite worsening health conditions (Malala). Shaik and Mngeni live in two different legal realities, one for the rich elite, and one for the indigent criminals.

“In South Africa, the law is for the rich and connected,” an anonymous man said to the Guardian. “[The rich] won’t even go to jail. If you are rich or powerful, you are fine in South Africa.”

In the face of fraud and bribery, South Africa has experienced an 83 percent decrease in corruption convictions in the last five years – 14,793 arrests were made in the 2010/11 fiscal year, while only 5,847 were made in the 2014/15 fiscal year (Mbhele). Yet according to Shadow Minister of Police Zakhele Mbhele, South Africa loses over R30 billion, or approximately 2 billion dollars, a year due to government corruption, a number that has climbed despite the decreasing conviction rate (Mbhele).

The issue stems from a corrupt judicial system that is not independent from the executive, according to Mbhele, ever since the replacement of the Scorpions judicial corruption-busting unit with the Hawks in 2009. The Scorpions had operated as an independent, prosecutions-led unit under the National Prosecuting Authority (NPA), while the Hawks are placed under the South African Police Service, controlled by the executive. In fact, Mbhele says that Zuma had faced almost 700 counts of fraud, corruption, money laundering, and racketeering, which had led him to disband the Scorpions (Mbhele).

“With the country losing approximately R30 billion, and climbing, each year to corruption, it is completely inexplicable as it is unacceptable that convictions in corruption have plummeted,” Mbhele wrote. “It is crystal clear that President Zuma and the ANC in government are not interested in the war against corruption but are rather the biggest proponents of corrupt activity.”

According to Herbert Igbanugo, founding shareholder of the Igbanugo Partners International Law Firm, executive control over judicial bodies such as the Hawks inhibits judicial independence, which allows corruption and fraud to perpetuate (Igbanugo).

“A major factor inhibiting judicial independence is the control of the executive branch over elements such as the appointment, promotion, and remuneration of judicial officers and the judicial budget,” Igbanugo wrote. “Efforts to promote judicial independence are essential to the control of corruption and the promotion of economic development.”

Independent institutions like the previous Scorpions unit are necessary in a judicial system that continues to indicate that only wealth gives access to justice, and in a government that loses billions of dollars to corruption every year (Mbhele). For rich citizens such as Schabir Shaik, the lack of independent prosecution creates a judicial system and government that is easy to exploit.

“[Shaik] been treated differently because he has money,” Clare Ballard from Lawyers for Human Rights told Al Jazeera (Dziewanski). "There are guys in [prison] who were sentenced to life 15-16 years ago who became eligible for parole after 13 years. That's years and years after the [potential] date of release."

Works Cited

Dziewanski, Dariusz. "The Price of Justice in South Africa." Al Jazeera English. Al Jazeera, 8 Sept. 2015. Web. 07 Mar. 2016.

Igbanugo, Herbert A. "The Rule of Law, Judicial Corruption, and the Need for Drastic Judicial Reform in Sub-Saharan Africa's Nation." International Law News 42.3 (2013). American Bar Association. American Bar Association, Summer 2013. Web. 04 Mar. 2016.

Malala, Justice. "High-profile Criminal Cases Expose Inequality in South Africa's Justice System." The Guardian. The Guardian, 04 Nov. 2014. Web. 07 Mar. 2016.

Mbhele, Zakhele. "Hawks' 83 Percent Plummet in Convictions Necessitates Return of the Scorpions." Africa News Service. Gale Global Issues in Context, 29 Oct. 2015. Web. 8 Mar. 2016.

"Politics versus the Law; South Africa." The Economist. Gale Global Issues in Context, 4 Apr. 2009. Web. 8 Mar. 2016.