* This is the first of a new series of columns called A Matter of Justice, written for LegalBriefs, a South African daily online legal interest newspaper
WHEN a judge, writing in July 2015, says the treatment of an individual in a case he’s been hearing is one of the worst since the advent of democracy, you pay attention.
Who is this person who has been treated so badly? What happened, and who was responsible for abuse that shocked even a hardened judge?
Emeka Christian Okonkwo is a Nigerian trader. It’s an undisputed fact that he’s in South Africa quite lawfully. He had a little shop in East London where he sold cellphones and gold chains for which he was properly licensed.
But on 3 August 2012 his world turned upside down: He was summarily picked up and detained by officials of the Department of Home Affairs, long a byword for high-handed abuse of individuals and of an equally high-handed disregard for the law.
They pretended that they had a warrant for his arrest – a blatant lie as it turned out. Then they locked him up in Fort Glamorgan prison, turned their backs and walked away.
For 75 days he languished there, completely cut off from family and friends.
No one except the officials who incarcerated him knew where he was. He wasn’t charged or taken to court. He wasn’t told why he was being locked up or what he was supposed to have done wrong.
In fact, as Judge Phakamisa Tshiki said later, those who locked him up never had any intention to take him to court, and it was the clearest case he had seen of malicious arrest and detention.
Okonkwo might still be there if it hadn’t been for an alert prison warden – someone who should be nominated for a human rights award – who took an interest in this man, imprisoned for no apparent reason.
Thanks to that intervention Okonkwo was ultimately simply let go, without ever having appeared in court or being informed of what sin he was supposed to have committed.
But the abuse of Okonkwo continued even after his release. Not surprisingly he sued the department of home affairs, but did the department admit its officers were culpable and offer to make amends? No way. They fought the case as though some high principle were at stake, forcing Okonkwo to go through every legal hoop until the matter was about to be heard as a full trial.
Only then, with court dates settled and the matter about to proceed, did they cave in and admit that his arrest and detention were unlawful and that they were liable to pay damages of whatever amount a court found appropriate, as well as his legal costs.
When the question of the actual damages was argued, the two parties couldn’t agree on the appropriate compensation he should be awarded and the issue had to be decided via a full-blown trial.
Okonkwo was the only witness. The department, despite fiercely defending the matter, led no evidence whatsoever.
Okonkwo told a sorry tale of how his life as fallen apart as a result of his unlawful detention. His wife and child are both lost to him. She left him and his child has gone too because he couldn’t take care of them while he was locked up.
The arrest in his shop was made more humiliating as it was witnessed by his family, neighbours and others. His experience in the cells was not only humiliating, it was terrifying as well, with other prisoners attempting to rape him. For 75 days he had no bed, he couldn’t eat the food provided, there was competition for the toilets. The whole place stank.
Perhaps the most outrageous part of the whole story however is the two-part argument put up on behalf of the department to explain why Okonkwo should be paid far less in damages than he claimed: The court was “dealing with public funds”, said counsel for the department; moreover the court had to weigh up what was appropriate to award as damages considering Okonkwo’s “standing in society”.
The implication of the second part of the argument was that he was a nobody, a mere Nigerian trader, and he should therefore be satisfied with less compensation than would be awarded to an important person. Such an argument speaks volumes about the department’s understanding of the Bill of Rights and the guarantee of equality in our constitution.
As for the first part of the argument, that public funds that would be used to pay damages to Okonkwo – there is a solution to the problem, namely that the responsible officials pay the damages out of their own pocket.
In the end Judge Tshiki, who heard the case in the high court, East London, called the way the department handled the litigation “reprehensible in the extreme”, awarded Okonkwo damages of R750 000 plus legal costs.
There’s deep irony to the timing of judgment in this case. It was delivered 800 years, to the very month, after the signing of the Magna Carta, that charter which has so fundamentally shaped our views of human rights over the centuries, and which is one of the influences that led ultimately to such other documents as South Africa’s Constitution.
Here, for example, is Chapter 39 of the Magna Carta: No man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgment of his peers or by the law of the land.
For 800 years that has been a touchstone by which a government could be judged. In the case of Okonkwo however you see a man taken and imprisoned, dispossessed of his family not to mention his financial losses, completely without sanction by the law of the land.
It’s a damning indictment of the department of home affairs, its officials and the broader government that continues to allow this department to behave as though the constitution did not exist.
Actually, since our money will pay for this atrocity, it’s also an indictment of the public. Unless we speak up, urging that officials who flagrantly defy the law pay for their misdeeds out of their own pockets, and that legal action is taken against them where appropriate, we are unavoidably complicit in their crimes.
That, at any rate, is my view and in this, the first of what will be a fortnightly column, I put it forward for debate.
My intention in “A matter of justice” is to highlight judgments and other legal issues through which we can see more clearly where we’ve come from and where we’re going. My hope is that these columns, with the discussion that follows, will help contribute to a better understanding and appreciation of our constitution as well as the democratic society, founded on the rule of law, that we want to create.