On 6th January 2022 Richard Littlejohn of the UK’s Daily Mail wrote:
“The acquittal of four statue-topplers in Bristol this week is further evidence of a world gone stark, staring mad.
Even though they were caught on camera committing criminal damage and made no
attempt to deny it, they were found not guilty by a majority of 11 to one.
So much for the wisdom of juries.
It is true that mankind does have a history of statue toppling and icon destruction, especially by religious and political fanatics – one thinks, perhaps, of the defacement by early Coptic Christians of the statues of pagan gods venerated in the time of the Egyptian Pharoahs, the defacement of Catholic icons by the Puritans in England and, more recently and closer to home, the defacement of the statues of Cecil John Rhodes at UCT and of Paul Kruger and various other Boer leaders by EFF and ANC cadres.
The failure of university councils to act strongly against the iconoclasts led, as we know, to further vandalism on most campuses (including Wits, UCT and UWC) during the “fees must fall” campaign where academic buildings, libraries and artworks were also the targets.
Sadly, these modern-day examples don’t paint a harmonious picture of the triumph of right over wrong. In fact they paint the opposite picture.
It is no coincidence that following the fire in Parliament in Cape Town, several other crazies have taken their cue from previous acts of vandalism and have since smashed the windows of the Constitutional Court as well as the Magistrates’ Court in Vryburg.
No civilised democratic country can condone deliberate damage to property (statues included) belonging to the State or to a municipality or even to a citizen.
Thus the toppling and defacement (with paint) of Colston’s statue in Bristol was a deliberate act of vandalism. The motive for the attack was a protest against Britain’s participation in the slave trade, which ended almost two centuries ago. On the other hand, the motive for erecting the statue in the first place was that Colston was a major financial benefactor of the city of Bristol, just as Rhodes was a great benefactor of Cape Town, UCT and world-wide education through the Rhodes scholarship programme.
The way in which a democratic legal system deals with property rights determines whether that society will prosper or will fail.
If property damage is permitted, as in the case of Rhodes or Colston, and there is no push-back by the law, then anarchy will replace law and no-one will be safe.
This is why our South African Roman-Dutch legal system has penalties for those who take the law into their own hands.
The taking of another’s property or damaging it is seen in a serious light by the law.
My late uncle told the story of the disappearance of a donkey owned by my grandfather, a businessman and also a farmer, in Sabie, Mpumalanga, about 70 years ago.
When one of my grandfather’s employees reported that the missing donkey was observed in possession of another farmer in the Sabie district, my grandfather sent someone to get it back. Because the other farmer was away at the time, my grandfather could not obtain his consent to its return, and the donkey was simply harnessed and brought back to my grandfather’s farm. The other farmer, incensed at this removal without consent, threatened both criminal and civil proceedings against my grandfather.
Perplexed by this and wanting to avoid the costs of court proceedings or even arrest, my grandfather was compelled to purchase his own donkey back from the other farmer. The reason: in law my grandfather had, without permission, “spoliated” his own donkey back from the person in possession at the time, ie. the other farmer. Strange but true!
This example of my disappointed grandfather illustrates that not only ownership of movable property but even mere possession by someone including a non-owner is sacrosanct.
In the case of Ivanov v. North-west Gambling Board 2012 (6) SA 67, the Supreme Court of Appeal confirmed that the aim of a spoliation order is to prevent self-help.
Thus if movable property is removed from the person in possession (whether in possession lawfully or unlawfully) possession must first be restored to the possessor before the owner is entitled to have questions concerning illegality or wrongfulness of the right to possess the “spoliated” item determined.
Thus if I lend you my book I cannot just walk into your house, take the law into my own hands as it were, and “take” my book back without your consent, as you are “in possession”. So highly does our South African law consider the right to undisturbed possession.
The UK Attorney-General is considering going on appeal in the Colston statue case because, basically, the jury were clueless and didn’t understand that the Bristol City Council, as legal owner or possessor of the statue, needed to be protected from people taking the law into their own hands by toppling its statue without consent.
Even though this is a criminal and not a civil case I can’t think that the British appeal judges will allow treating “offensive” statues as fair game for vandals rather than viewing these statues as “property” which needs to be protected from vandalism and theft.
Several years ago when visiting London, I saw Lord Kitchener’s statue lying in repose in a crypt in a side-chapel in St. Paul’s Cathedral. Kitchener was the British General who during the Anglo-Boer War continued to apply Lord Roberts’s scorched earth policy, which led to many Boer farmers to being sent to British concentration camps and their farm houses being burnt down.
It was in the Bethulie concentration camp where my 5 year old grandmother and her parents and grandparents were detained and where several family members died.
What desecration might one such as I have wanted to visit on that statue if it had been accessible and not locked behind bars in the cathedral?
This desire to avenge past wrongs can be very dangerous. Just a few weeks ago a young man of Indian descent scaled a perimeter wall at Windsor Castle, intending to assassinate the Queen with a crossbow in revenge for the Amritsar massacre of 1919.
Surely it’s time for all liberty-loving societies to deal firmly with the growing populist trend to vandalise statues of historical figures or even to “cancel” the living public representatives of democratic states, which, in years gone by, discriminated against minorities or their colonial subjects but, today, have modern constitutions promoting equality and upholding the rule of law.
A successful state will enforce laws protecting ALL property rights and will do its best to dissuade dissidents of all hues, with grievances against authority of any kind (including wearing masks and vaccinating or historical wrongs, such as slavery), from desecrating public and private property or, perhaps, exacting revenge through inflicting physical harm on those who disagree with them.
The original object of the Mandament van Spolie was to prevent people from taking the law into their own hands and so causing disturbance of the peace.
Ironically, the proponents of “cancel culture” don’t appreciate the fact that the destructive actions of some of their adherents pose a highly serious threat to the very liberal values of “life, liberty and property” which they enjoy in the free democratic societies of which they are citizens.
Let’s hope that our courts stand firm and resist the temptation to allow themselves to be persuaded to depart from long-established Roman-Dutch laws, such as those protecting property-owners from spoliation by the discontented advocates of wokeness in pursuit of their questionable world views.
The views of the writer are not necessarily those of the Daily Friend or the IRR.