The maxim ubi ius ubi remedium expresses an important principle of law. It means “where there is a right there is a remedy”.
In other words, “the existence of a legal rule implies the existence of an authority with the power to grant a remedy if that rule is infringed. A legal rule will be deficient if there is no remedy for enforcing it and if no sanction attaches to a breach of that rule.”
As pointed out by the SCA, one would be forgiven for thinking that this is a description of what occurred during medieval times. This is in fact how the king treated his subjects at a time after South Africa became a constitutional democracy .
A recurring theme in the defence raised by the king during his trial, which was described as astonishing by the SCA, is that he was acting in the best interest of his people and by resorting to his brand of justice he was merely seeking to protect them from outside influences and upholding customary law.
This was however contradicted by the evidence of state expert witness, Professor Digby Sqhelo Koyana.
He testified that customary law demands that a king ensures the maintenance of law and order, protects the life and security of his people and acts compassionately with due regard to the dignity of his subjects.
The king’s wanton assault, kidnapping and arson can hardly be said to be compassionate.
Furthermore, it is common cause that the king did not convene a customary court in order to adjudicate over the crimes his subjects were alleged to have committed. In fact, the king conceded that he did not have jurisdiction. Instead, the king brutally administered what he termed “people’s justice” or “jungle justice”.
Clearly, the king had become a law unto himself. It therefore stands to reason that his supporter’s assertion that he was convicted for exercising his traditional legal duties as a judicial officer is unfounded and tantamount to vulgarising customary law.
The king, not the courts, undermined customary law.
Even if customary law permitted him to act with such sheer brutally, such customary law provision would be abrogated by the constitution. The king’s supporters ignore fundamental developments in our law and simply cling to the false premise that the king can do no wrong.
The calls on the president to pardon the king are similarly unfounded.
In the case of Hugo v President of the Republic of South Africa, the Constitutional Court identified at least two situations in which the power to pardon may be important. First, the Constitutional Court found that pardons may be used to correct mistaken convictions or reduce excessive sentences. Second, the Constitutional Court found that pardons may also be used to confer mercy upon individuals or groups of convicted prisoners when the president thinks it will be in the public benefit for that to happen.
Thus, whilst the president is conferred with the prerogative to pardon by the constitution, he ought to ensure that his powers are exercised judiciously, in a manner that does not undermine the pain and suffering of the king’s victims.
The king was represented by no fewer than 11 legal representatives during the course of his protracted legal battle.
His criminal case was ultimately considered by 17 judges who unanimously found against him. The king’s supporters omit to say why 17 judges were wrong.
The dawn of South Africa’s democracy ushered in a seismic shift in the recognition of customary law. The constitution recognises customary law as an independent source of law equal in status to common law and statutory law. The recognition of customary law has been confirmed by our courts on numerous occasions.
The arguments advanced by the king’s supporters create a false dichotomy between the various sources of South African law and completely disregards the victims of the king’s crimes.
This case affirms our cherished constitutional principle that all are equal before the law.
It also sends a strong signal that all those who exercise power within our communities must do so with due regard to people’s inherent dignity and with compassion that is best encapsulated as ubuntu.
George Bizos, SC, and Lunga Siyo, Counsel, are from the Legal Resources Centre’ constitutional litigation unit
Call for pardon rest on false premise king can do no wrong
In other words, “the existence of a legal rule implies the existence of an authority with the power to grant a remedy if that rule is infringed. A legal rule will be deficient if there is no remedy for enforcing it and if no sanction attaches to a breach of that rule.”
As pointed out by the SCA, one would be forgiven for thinking that this is a description of what occurred during medieval times. This is in fact how the king treated his subjects at a time after South Africa became a constitutional democracy .
A recurring theme in the defence raised by the king during his trial, which was described as astonishing by the SCA, is that he was acting in the best interest of his people and by resorting to his brand of justice he was merely seeking to protect them from outside influences and upholding customary law.
This was however contradicted by the evidence of state expert witness, Professor Digby Sqhelo Koyana.
He testified that customary law demands that a king ensures the maintenance of law and order, protects the life and security of his people and acts compassionately with due regard to the dignity of his subjects.
The king’s wanton assault, kidnapping and arson can hardly be said to be compassionate.
Furthermore, it is common cause that the king did not convene a customary court in order to adjudicate over the crimes his subjects were alleged to have committed. In fact, the king conceded that he did not have jurisdiction. Instead, the king brutally administered what he termed “people’s justice” or “jungle justice”.
Clearly, the king had become a law unto himself. It therefore stands to reason that his supporter’s assertion that he was convicted for exercising his traditional legal duties as a judicial officer is unfounded and tantamount to vulgarising customary law.
The king, not the courts, undermined customary law.
Even if customary law permitted him to act with such sheer brutally, such customary law provision would be abrogated by the constitution. The king’s supporters ignore fundamental developments in our law and simply cling to the false premise that the king can do no wrong.
The calls on the president to pardon the king are similarly unfounded.
In the case of Hugo v President of the Republic of South Africa, the Constitutional Court identified at least two situations in which the power to pardon may be important. First, the Constitutional Court found that pardons may be used to correct mistaken convictions or reduce excessive sentences. Second, the Constitutional Court found that pardons may also be used to confer mercy upon individuals or groups of convicted prisoners when the president thinks it will be in the public benefit for that to happen.
Thus, whilst the president is conferred with the prerogative to pardon by the constitution, he ought to ensure that his powers are exercised judiciously, in a manner that does not undermine the pain and suffering of the king’s victims.
The king was represented by no fewer than 11 legal representatives during the course of his protracted legal battle.
His criminal case was ultimately considered by 17 judges who unanimously found against him. The king’s supporters omit to say why 17 judges were wrong.
The dawn of South Africa’s democracy ushered in a seismic shift in the recognition of customary law. The constitution recognises customary law as an independent source of law equal in status to common law and statutory law. The recognition of customary law has been confirmed by our courts on numerous occasions.
The arguments advanced by the king’s supporters create a false dichotomy between the various sources of South African law and completely disregards the victims of the king’s crimes.
This case affirms our cherished constitutional principle that all are equal before the law.
It also sends a strong signal that all those who exercise power within our communities must do so with due regard to people’s inherent dignity and with compassion that is best encapsulated as ubuntu.
George Bizos, SC, and Lunga Siyo, Counsel, are from the Legal Resources Centre’ constitutional litigation unit
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