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Friday 19 April 2019
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Topical legal issues

We have observed that law and justice are not synonymous. Many law as are the antithesis of justice, and bad governments use laws to perpetrate injustice sometimes of diabolical proportions. The apartheid laws are a good example.
 
President Trump’s Immigration Ban: –
Right now in the USA we see the President posturing that his immigration ban is legally necessary so as to ensure that no “radical Muslim or ISIS member” enters the USA. So he bellows that the country must be kept safe.
 
If there was any sincerity about the motive being to keep America safe than the President’s first concern would be to introduce reasonable gun control measures. Over 14 000 Americans are killed every year, mostly on account of irresponsible gun use. Last year over a thousand toddlers have killed using guns. What we have seen instead is the President and his Party blocking an Obama law from being passed that would have ensured that mentally disordered people are denied gun ownership.
 
So it is 100% clear that the immigration ban that Trump is trying to have enforced as law has nothing to do with public safety because the lax gun ownership laws that he supports are infinitely more dangerous for guaranteeing the routine killing of his people.
 
The Death Sentence: –
There are many who advocate for the death sentence being imposed in respect of really heinous crimes especially murder. This inclination is steeped in the deeply held historical notion of “eye for and eye; tooth for a tooth”.
 
Botswana and Zimbabwe still have the death sentence. In Namibia and South Africa, the cold-blooded killing of a human being as a form of punishment has been ruled by the highest Courts as being “cruel, inhuman and degrading” and therefore unconstitutional.
As a Judge I sentenced a human being to death on five occasions. In each case the sentence was richly deserved. To my mind, once you are forced to accept that killing another human being is justified in certain circumstances; as when you find an intruder strangling your child, then you are precluded from artificially drawing a line in the sand and saying that a point has been reached when it is no longer justified. It is completely illogical to contend that you can be killed if caught in the act attacking my child but are entitled not to be killed just because you managed to successfully desert the scene after successfully raping and killing my child.
 
To my mind it defies common sense, logic and morality to contend that a State police officer can kill you to stop you in the act of threatening serious injury or death to others, but the State hang man cannot hang you when you have successfully killed dozens of humans in a terrorist action. A study of the Constitutional Court judgement that outlawed capital punishment in South Africa reveals that the Court could have just as easily come to an opposite decision. Outlawing the death sentence is now a kind of “jurisprudential correctness” that is widely arbitrarily regarded as “enlightened” and/or “progressive”. To my mind we are currently no more “enlightened” as a species than we ever were. Never mind.
 
Despite my views, I do not support capital punishment. My reason is very, very simple. If you have the death sentence it WILL be abused intentionally and/or unintentionally as sure as the sun will rise tomorrow. There are any number of police in this region who will manufacture evidence and/or falsify evidence especially on behalf of their political masters.
 
It is also the case that even the best of Courts can be misled. In my book I recount a case where I nearly convicted a man that was totally innocent. Everybody, including his own Senior Counsel believed that he was guilty.
 
The problem is that you cannot reverse an execution or compensate a human that has been wrongly executed by the State.
 
Sane automatism: –
I had a very rough upbringing in Rhodesia and I estimate that I was involved in 19 situations of physical violence as an adult. At all times, even when quite drunk, I was in full control and would not have killed my opponent for instance.
 
Then the South African Courts started to recognise “sane automatism” as a defence. By this is meant that a human being can reach a stage where he/she acts “automatically” whether they like it or not. I really dismissed this as so much rubbish.
 
Then one afternoon I was lucky to avoid a motor collision in which the guilty driver then gave me the finger sign. I went after him knowing that he would be stopped at the next robots. I was going to throttle him to near unconsciousness and then re-program him on good manners as I gave him oxygen. All the while I was having an internal conversation with myself that “you cannot do this … it is against the law … you are a High Court Judge ….” … but I could do nothing to stop myself even knowing that I was in possession of a .45 Revolver that I would use if things went badly for me.
Fortunately he was able to escape as my vehicle was towing a boat.
 
This incident was a huge lesson to me as a senior judicial officer. I then realized that a human being can indeed commit a crime “automatically” whether they want to or not.
The problem was that, up to that date, I would probably not have excused an accused that pleaded this defence in my Court.



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