State v Matshela Koko and others: Commentary.

Let this rendition start by congratulating Matshela Koko and others for the courage to say, 'We are not what they say we are'. It is a statement loaded with a consciousness of self that will be liberatory to many executives in South Africa who have been silenced by the noise covering the lies and not the calm that is a firmament over the truth of and about black executives. 

John Rawls teaches that "justice is the first virtue of social institutions, as truth is of systems of thought". As a society, we need a shared conception of justice, even if we differ in definition. In that way, we can live together in a stable, efficient and coordinated society. A public conception of justice should constitute the fundamental character of a well-ordered human association.

As a (democratic) society, we must also mature as human beings. It is true that as we come together in a society, we experience an alignment of interests because social cooperation offers benefits for all and conflict over the distribution of those benefits. This is also called a conflict of interest. We are obliged by our quest for peaceful coexistence to regulate how we deal with the omnipresent conflict of interest. Historically, humanity has implemented a conception of justice through its major institutions, its political constitution, and the design of its economic and social spheres. 

Because the South African cause of human co-existence has been the pursuit of human dignity, social justice, and human rights, its institutions are designed to ensure that both the good and right take precedence. As a result, our form of justice, at least in theory, is designed to attribute moral worth to certain character qualities and encourage people to become certain kinds of individuals. It should follow that our justice system should be difficult to manipulate. It must refuse to aim at a particular outcome. The rules must be fair. Once the justice system starts processing you, its institutions must perform their roles according to fair rules. 

In a society whose institutions only know the oppression of the other by another, the mechanics of fairness are unknown. The criminal procedure in such a society is in a hangover of its no human rights past. Those who lead can only be constrained by society's understanding of fairness in justice; their default position will always be the maintenance of the law and order they grew under. 

The anti-state capture or corruption episode which South Africa went through in the past five years after the 'nine waisted or otherwise years' might go into legal history as a period wherein consensus to attune the justice system to aim for particular outcomes was at its peak. It was an era of principled and legalised wrongdoing presided over by an independent judicial authority enjoying the unquestioning manufactured consent to be angry at those society labelled as corrupt. 

In this vortex of unfairness, it is true that some were corrupt and facilitated state capture. How their rights in their wrongness were processed is what puts the country's judicial authority on trial. The assertion that some institutions in the criminal justice value chain have been busy with 'hate crime' may linger with the 'years of unfair prosecution' that followed the distinctly labelled  'nine wasted years'.

It would be interesting to understand if scrapping off the roll is a form of acquittal or just an opportunity to regroup. As Matshela said, 'we deserve to know the truth' about the substantive issues of the case. In as much as we will one day ask what Judge Ngcobo meant when he said the President has a case to answer on PhalaPhala, we want to know about the veracity of the allegations against Engineer Matshela Koko and all other black executives who the cloud of corruption lingers upon their heads. 

The unfortunate veil of ignorance in matters of justice covering our nation has, for a while, let many in positions of power get away with murder. What is more painful is reliance on a judiciary whose formative lived experience has no precedence over the freedom of our human rights-based legal system. Our criminal justice system might be homesick for a home it has never been to. 

It is true that organs of state in the criminal justice cluster, including judicial officers, have not gone through a process where we can trust that they have considered that they might have obligations to their moral and religious convictions based on the veil of ignorance about our human rights-based system of justice. Until the veil lifts, they don’t know the content of their convictions. The persecution through prosecution that is going on in the country is worse than what apartheid's detention without trial has been.

This veil of ignorance has prevented the nation, its judiciary, prosecuting authority, and political leaders from shaping our moral view to accord with our particular attachments and interests. Because the unfairness was meted against those we have 'a manufactured consent' that they are corrupt and were captured, we allowed their rights secured by justice to be subject to political bargaining or to the calculus of nefarious interests. In the process, we forget that a social system may be unjust even though none of its institutions are unjustly taken separately.

 

The State v Matshela and others case is trailblazing. It might stop the black executicide.