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The court of public opinion is dangerous

Mbuso Moloi, the 30-year-old Durban North man who was caught on video allegedly looting a basket of goods from a Woolworths food store in Glenwood made his first appearance in court. Picture: Tumi Pakkies/African News Agency(ANA)

Mbuso Moloi, the 30-year-old Durban North man who was caught on video allegedly looting a basket of goods from a Woolworths food store in Glenwood made his first appearance in court. Picture: Tumi Pakkies/African News Agency(ANA)

Published Dec 7, 2021

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By Sivuyile Mbambato

The 30-year-old Mercedes-Benz driver, who went viral on social media after being captured on video footage allegedly looting a Woolworths store in Durban, will cut a lonely figure this week when he appears in the Durban Magistrate’s Court on Tuesday (December 7).

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Mbuso Moloi, dubbed the “Mercedes-Benz looter”, faces several charges, among them theft and public violence. He has pleaded not guilty to the crime.

During the dark days of the July unrest, it is easy to believe that Moloi became the most hated and infamous looter in the court of public opinion.

The law reciprocated this and saw him spending seven days in Westville Correctional Service Centre. He paid R5 000 bail.

In addition, the Asset Forfeiture Unit in KwaZulu-Natal obtained a preservation of property order in the Durban high court , for his Mercedes-Benz C300 Coupé.

The National Prosecuting Authority said the vehicle was preserved on the basis that it was instrumental in the offences.

Undoubtedly, the memory of the nearly two weeks of the July unrest civil unrest, and the 350 people who died, lingers in our minds.

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The South African Human Rights Commission (SAHRC) completed its round of hearings which included unearthing the causes of the unrest and zooming into the extent to which human rights were impacted during the events that unfolded between July 8 and 19, 2021, in the provinces of Gauteng and KwaZulu-Natal.

But sometimes history is better understood and teachable when it is told from a story of an individual.

The Moloi debacle and how history has been to him since he stepped out of a Woolworths store with a basket and jumped into his German car is a shameful and daunting experience only he will understand. The event turned his life upside down.

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Some can argue that he deserves it, depending on which angle you look at it.

There is evidence that suggests that in incidents where there is a strong public opinion, the law tends to be applied harshly, or selectively

Only time will tell if Moloi's punishment was appropriate to the crime he is alleged to have committed or whether the court of public opinion exerted so much pressure that he becomes the martyr. The deterrence doctrine implies that the punishment meted should serve as a valuable societal function.

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Lead researcher at UKZN in the field of social science Professor Paulus Zulu told the commission that the crowd of looters was made up of three cohorts.

The first was those who live from hand to mouth, the second was those who wanted more than what they had and the third, the “old vehicles”, who collected long-lasting items.

It emerged in the hearing that those who had nothing to lose and were easier to band together were made scapegoats during the unrest.

A question arises: Do those who belong to the second or third cohorts deserve harsher retribution for breaking the law?

The Bill of Rights states that “everyone is equal before the law” and that “the State may not unfairly discriminate directly or indirectly against anyone” on social status. In this case, the three cohorts represent the levels of social status.

On March 22, 2013, the Supreme Court of Appeal heard the case of Humphreys versus the State. Ten passengers in the minibus were killed and four were seriously injured during the crash with a train.

The driver of the minibus was convicted in the High Court, of murder and attempted murder. It can be argued that due to the court of public opinion and the public interest in the case, the High Court saw it fit to rule in the manner it did.

On appeal, Jacob Humphreys’s murder conviction was consequently replaced with culpable homicide. His sentence was effectively reduced from 20 years’ imprisonment to eight years.

In October 2014, the South Gauteng Court overturned Moleme “Jub Jub’ Maarohanye and his co-accused’s murder conviction to one of culpable homicide. Their sentence was reduced to eight years in prison. In the beginning, the case began when the accused injured and killed schoolchildren during a drag race that created so much public outcry.

Ordinarily, the accused were meant to be charged with culpable homicide but the court of public opinion dictated that a murder charge would be appropriate for the crime. The State pursued murder charges which were subsequently converted to culpable homicide on appeal.

While Moloi’s legal battle should not be compared with such severe cases, the commonalities in the above examples are that, in the beginning, the cases stirred so much controversy and public opinion was so robust that one needs to ask how much the noise from the public opinion influenced such cases, especially in the lower courts. And whether he State, in deciding on what charges to be brought against the accused, was influenced by public opinion.

Can public opinion lead to selective justice and influence justice?

Public opinion can mean the values, beliefs and prejudices of a community. It can also mean elite opinion, especially the opinion of the politically active elites. It is the aggregate of individual attitudes to a public issue, which is what opinion polls mostly measure.

The judiciary authority in South Africa is vested in the courts, which are often hailed for their independence and subject only to the Constitution. Furthermore, no person or the organ of the State may interfere with the functioning of the courts.

But isn't it time we begin to advocate for checks and balances on the influence of public opinion in judiciary matters?

An opportunity exists for public relations practitioners to navigate the space and represent those who find themselves on the wrong side of the court of public opinion.

Gone are the days where lawyers, as a matter of principle, advised their clients and appellants not to defend themselves in the media space when they were being trialled by the media on one hand, and the court of public opinion on the other, on matters that were sub judice.

The repercussions of not contesting public opinion are proving to be dangerous and expensive.

*Mbambato is a founder of Ngokwethu Communication.

** The views expressed here are not necessarily those of Independent Media and IOL.

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