Is the law fair or fickle?

By Anton Katz SC

The saga of 22-year-old Pretoria law student Mr Tuta is interesting. Does his story demonstrate that law and justice ultimately prevail, or rather that the law is arbitrary, can be, and often is fickle? 

Mr Tuta and his friend were peacefully and soberly walking home to his residence in Sunnyside, Pretoria on 2 March 2018 in the late evening. They realised that they were being followed by a red unmarked motor vehicle with its two occupants wearing civilian clothing. Mr Tuta and his friend panicked and ran away, believing that the occupants of the vehicle intended to harm them. They ran in different directions.

The two occupants of the unmarked motor vehicle were, in fact, police officers. They were on duty patrolling Sunnyside in civilian clothing. According to one of the policemen they attempted to arrest Mr Tuta after he and his friend ran away. The police suspected Mr Tuta of being in possession of a stolen laptop because, according to the police, it appeared as if he was hiding a laptop under his tracksuit jacket. They pursued him, first in the unmarked car, and thereafter on foot. The two policemen overpowered Mr Tuta, and whilst the one held him down, the other went to the vehicle to fetch handcuffs. Mr Tuta, using a flick knife that was in his pocket, then stabbed the one constable, who died the next day after being admitted to hospital.  When the other officer returned, he was stabbed in the head, was eventually hospitalised for 34 weeks and now lives with a severely injured left eye that has affected his eyesight. 

Mr Tuta admitted to stabbing both police officers. He says he left the scene immediately to seek help. He said that after failing to receive assistance from security guards in the vicinity, he went to his residence. There he told the security guard what had happened, and also called his sister to tell her. The following day, accompanied by his sister, Mr Tuta went to the police station to report the matter. They were informed by the police that a case could not be opened because he could not identify his attackers. Mr Tuta left his contact details and residential address with the police officer on duty at the station. Later that day the police turned up at his residence and arrested him. The police demanded he hand over the stolen laptop, but Mr Tuta informed the police he had not been carrying a laptop. Mr Tuta was charged in the High Court with one count of murder, and one count of attempted murder in respect to the two constables. He pleaded not guilty to both counts. His defence was ‘putative self defence’. That defence is when an accused kills another in the mistaken but genuine belief that his life is in danger. The accused lacks the intention to act unlawfully. That accused is accordingly not guilty of murder. 

Mr Tuta’s defence was rejected. In September 2019, he was convicted on both charges of murder and attempted murder. The minimum sentence for killing a police officer is life imprisonment, which was imposed on him together with 15 years’ imprisonment on the count of attempted murder. Mr Tuta applied to the High Court and then to the Supreme Court of Appeal to appeal against his convictions. Both the High Court (one judge and two assessors) and the SCA (three appeal court judges, including the President) found that he was correctly convicted and sentenced, He thus had no prospects on appeal and so he was refused to appeal at all.

As a last measure he appealed to the Constitutional Court against his convictions and sentences. Nine justices of the Constitutional Court heard the matter. Miraculously for him, Mr Tuta won. Seven justices (Acting Justice David Unterhalter writing for the majority) ruled in his favour, while two would have ruled against him. 

So, on one day (12 May 2022) Mr Tuta was serving a life sentence because four judges (plus two dissenting Constitutional Court justices) had accepted he was guilty. And on the next day (13 May 2022) the Constitutional Court (in a seven two split decision) freed him from prison forever. Unbelievable, some would say!

One of the obvious lessons that can be learnt is that in life there is always hope. To be serving a sentence of life imprisonment one day and to be free forever the next means we all can live in hope for a better tomorrow, whatever that may mean for each of us. But as far the law is concerned questions must be asked about whether it was applied fairly to Mr Tuta. 

And that question takes on a larger role when asked about each of our cases. When one is sued or sues for an unfair labour practice, or we approach court for child maintenance, or for the return of our life savings stolen by an unscrupulous financial advisor, or we are charged with a relatively minor crime; can we expect justice and fairness in the process? Or is the result of the court process arbitrary and fickle? After all, courts are nothing but human beings clothed in fancy robes, sitting on high backed chairs and making decisions on disputes between us. And those human judges have the lives of all who appear before them, like Mr Tuta, in their hands. What a responsibility? Some humans are fair minded whilst others, by the nature of things, can be fickle at times. And I suppose the ultimate lesson is that the law is mostly fair and just, but not always.

Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.

• Published in the PDF edition of the July 2022 issue – Click here to read it.

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