“Open the floodgates on corruption” says Noah, darkly.
“You write about serious matters but in a way that is silly, glib, and flippant. Does everything really have to be introduced by a throwaway line?”
Noah is giving me stick.
“Life is dull without humour,” I say. The attack leaves me like Bond’s martini — shaken but not stirred. “Moreover, my readers like it.”
“Have any of this miserable number ever said so?”
The man can be a real bitch.
“No, but point taken. You write the next piece, oh cerebral one.”
He does. This is it. Don’t blame me if you nod off halfway. At least you will happily be experiencing the Sleep of Reason.
* * *
Hello, I’m Noah. I’m a lawyer.
If you’ll bear with me, I’d like to write about the prosecution of corruption. To do so, I shall take the Phala Phala story as a framework. You may remember it. A large stash of dollars, seemingly belonging to Ramaphosa, was stolen from his Phala Phala farm while he was away being presidential. The story, newsworthy in itself, became a sensation when the public learnt that the currency was not lawfully his to possess and, wonder of wonders, had been secreted in the stuffing of a sofa in his living room. He had, to use the sort of language Wanda favours, been sitting on a pile.
Ramaphosa explained that the cash was the price of some cattle he had sold to a foreigner over the holiday period. All was above board, he contended. Everyone said he was talking bull (I use Wanda’s words) but, after he was exonerated by a Commission of Enquiry, the authorities declined to proceed against him.
For argument’s sake, suppose that President Ramaphosa was indeed complicit in the receipt and retention of cash in breach of the law. Suppose, further, that the prosecuting authority declined to prosecute through outright bias or sheer incompetence. Suppose, finally, that a public interest group wanted to ensure that justice was done. What, then?
In our law, no case can be brought unless the claimant has a direct and substantial interest in its outcome. In effect, this means that the claimant must be the victim, the one who suffered, before proceedings can be brought.
The injury you suffer must be ‘direct’. The fact that each member of the public is generally harmed will not be enough. In the present case, the crime supposedly committed by Cyril falls into this category; it would be a crime against the public in general.
Complicating the matter is the fact that even the victim enjoying a special interest cannot personally launch a criminal prosecution unless the State specifically consents.
The primary power to prosecute is vested in the criminal justice department. If it permits the victim to prosecute, by issuing a nolle prosequi, it is always free to revoke the consent and take over the prosecution in its own name.
In a properly functioning country, these principles make sense. They regulate and limit litigation by attention-seekers, busybodies and troublemakers, whose attentions can be burdensome and especially detrimental in public affairs.
In Rome, ordinary people could bring such cases under the appropriately named actio popularis, but the result proved insupportable and was soon abolished.
As I say, the rules work well enough in a properly run country. Ours is no such happy place. Corruption runs rampant, and those in high places seemingly steal with impunity. Overwhelmed or under-resourced, innocent or complicit, our prosecutorial service can do little and will do even less.
In recent years, the rules governing the power to bring a case — called standing or locus standi by us lawyers — have been significantly relaxed. Breaches of the Bill of Rights, in particular, can be vindicated by an entity or person who can show no greater interest than a desire to uphold the law.
These initiatives provide some precedent for a claim that unqualified limitations on the individual’s power to litigate are a derogation of constitutional protection enshrined, among others, in the right of unfettered access to court.
The courts will, naturally, still want to police any such innovation — much as they do with modern class actions. But the relaxation of the laws of standing would have a salutary effect on the almost unbridled pillaging of public coffers by our representatives and the officials they depute to do their work.
Under such a regime, an interested body such as AfriForum, which has a dedicated prosecutorial wing, would have the potential right to prosecute the notionally corrupt Ramaphosa. Would this not send a loud message to all that corruption will not be tolerated?
I think so. I think my learned friends in the profession would agree. Wanda, over to you.
“Thank you, dourling,” I (the ever-attentive Wanda) reply. “But I saw what you did. You snuck in a couple of witticisms as though they were mine. That’s not good. What else of mine have you been borrowing, pray?”
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