Johannesburg - The acquittal by the South Gauteng High Court this past week of four police officers charged for the alleged killing of Mthokozisi Ntumba has shocked many.
Ntumba was killed during a student protest in Braamfontein while he was leaving a surgery he had been visiting in the area.
From what we know, the case was dismissed because the state failed to secure the appearance of the technician, Naresh Suredin, who would have given testimony about the CCTV footage that allegedly shows the incidents surrounding Ntumba’s killing.
The claims by the state that they could not secure Surendin’s appearance has since been proved wrong by one of the daily newspapers which located Suredin and spoke to him. As if to add salt to the injury, Surendin is said to have stated that he was never summoned to appear in court.
On the other hand, the country is still waiting for the finalisation of the case brought against the mobile phone giant, Vodacom, by the inventor of the Call Me Back platform, Nkosana Makate. Even though Makate won the case against the mobile phone giant, the company has used every avenue available to them in law to reduce the compensation due to him.
In another case, former Steinhoff CEO Markus Jooste is yet to pay a fine for ‘insider trading’ after he is alleged to have sent out an SMS to four friends warning them to sell off their shares in Steinhoff just before the spectacular collapse of the group’s stocks.
The Financial Services Tribunal set aside a R162 million fine imposed on him in October 2020 by the Financial Sector Conduct Authority. The Tribunal argued that the SMS was not explicit and ordered the Authority to redetermine an appropriate fine, meaning a lesser penalty.
These and many other cases which demonstrate inconsistencies in how the entire justice system approaches cases is what some people have attempted to raise as evidence of how the law is applied differentially depending on the race, class, gender, and of late factional politics, that one may be identified with.
Unfortunately, and unlike say in the USA where a well-established tradition of critical socio-legal studies exists, our legal scholarship in South Africa is still dominated by the liberal tradition with its fallacy of the objective rule of law, equality before the law, and fairness within and by the legal system.
Almost all law academics and most legal practitioners subscribe to the liberal school. It is for this reason that those who raise even a short sentence that is critical of the legal system are dismissed and negatively labelled. A chorus made of the practitioners themselves, academics, NGO actors, and many in the mainstream drown out any critical voice that attempts to draw attention to the inherent contradictions of the legal system.
Students of Marxism on the other hand believe steadfastly that the ‘law is the instrument of the ruling class’. That it reflects the class dynamics of any given society. The rich and powerful are mostly favoured by the legal system, while the poor and powerless often find themselves on the sharp end of the stick.
Summing up the Marxist perspective on crime, Karl Thompson observed that the legal system - police, lawyers, and the courts - are “used to control the masses, prevent revolution and keep people in a state of false consciousness”.
Revisiting Crimes of the Powerful: Marxism, Crime and Deviance, edited by Steven Bittle, Laureen Snider, Steve Tombs and David Whyte is a collection of scholarly essays that examine how the powerful in most societies manipulate the justice system to their favour.
The collection revisits the 1976 book by Frank Pearce that went by the same title - Crimes of the Powerful: Marxism, Crime and Deviance. Pearce was thus the first to coin the concept of the ‘crimes of the powerful’, referring to the actions of the rich, companies and powerful politicians, and how they often collude to break the law and at times use it against the poor and powerless.
Divided into three main sections, the collection demonstrates how the powerful in most societies are protected by the law, abuse legal processes, and victimise the poor and powerless.
The first section examines theoretical and conceptual understandings of the law and the criminal justice system as enablers of ruling class dominance and manipulation. It is this analysis that is sorely missing in South Africa, where all known public commentators on the legal system present predictable analysis of the system, regurgitating tired liberal theories and agitating for the ‘disciplining and punishment’ of offenders in order to ‘deter’ those who may want to offend.
The contributors in this section demonstrate how capitalist societies produce ideological whitewashing of the ‘crimes of the powerful’ while on the other hand tightening coercion against the powerless. Capital accumulation is also examined as an enabler for exemption from accountability.
The ideological apparatus of capital, represented as it were by liberal commentators and the mainstream media, reinforce this. Clear examples of these include how alleged private sector violators are said to engage only in ‘insider trading’, ‘collusion’, and ‘negligence’; and not plain corruption and crime, which is what they do.
Section two provides case studies in the recent research into the ‘crimes of the powerful’. Here different contributors examine crimes committed by major corporations - the rigging of interbank interest rates, crimes committed by the fossil fuel and gas industry colluding with politicians against poor communities, rampant use of pesticides (and we may add here genetic modification of crops), wage exploitation as a crime against the workers, and the construction of major dams as an act of appropriating natural resources for private benefit while causing devastating damage to the environment.
The final section examines the confluence between state actions and the criminal acts of the powerful. Here the contributors point to new research on how the powerful in society are enabled by the state to commit their crimes and extract benefits from the criminal justice system. The global, or imperialist dimensions of crime are also examined in ways that liberal commentators always fail to show.
While written from an international perspective, and examining jurisdictions that are different from ours, the book is critical reading. For two major reasons. As argued earlier, the local legal scholarship and commentariat is dominated by the sterile liberal tradition that upholds the fallacy of the fairness of the legal system. A radical perspective of the law, crime, and the justice system is sorely missing in South Africa.
Second, some of the developments within the political, financial, and broader economic realms which often require the intervention of the legal system, and how the system responds to and is in fact used and abused by those involved, will better be understood if we adopted elements of radical analysis as the compilers of this book have done.
Long-standing and recent allegations against business leaders and some politicians, and how some are made to pay for their ‘sins’ while others literally ‘get away with murder’, can best be understood if the analysis in this book was to be employed by academics, activists, commentators and journalists.
We would at least be saved from the pedestrian arguments that are paraded on our television screens, echoed on radio, printed in newspapers and, more disturbingly, taught to students in law schools. We would also understand why Ntumba and Makate may never receive justice, while the Joostes of this world continue to enjoy their wealth.
Revisiting Crimes of the Powerful: Marxism, Crime and Deviance is published by Routledge. It can be purchased from online outlets.