“THE law is the law,” senior counsel Bantubonke Tokota said to the Judicial Service Commission (JSC) on Friday, justifying his having been an apartheid-era magistrate.
Tokota turned around what was set to be a tense line of questioning from commissioner Julius Malema — about the Marikana Commission of Inquiry’s report, which Tokota co-authored and his role as a magistrate in the turbulent 1980s — and had the commission in stitches, including Malema.
Tokota was one of three candidates to be interviewed for two spots on the Eastern Cape High Court. The other two were advocates Lilla Crouse and attorney Thembekile Malusi.
First asked about whether he believed in muti and whether muti could cause people to act in a certain way, Tokota said he did not. But he said, like church, if people did believe in it, “it worked for them”.
That line of questioning was brought to a halt when he said that the Marikana report never found that anyone had been moved by muti to do anything.
He was then asked by Malema about a case of a white man who had put a black person in a container, and had been absolved by Tokota.
Tokota replied that the case he was referring to was actually a defamation case against a newspaper. He said that in civil litigation like that, in terms of the law, a judge did not look at the race of the litigants.
He said there were circumstances when people’s background was important — for example, a judge should not send someone to jail for stealing bread if he was poor. But in other circumstances it was irrelevant; the facts were the facts, he said, and the law was the law.
Asked about being an apartheid-era magistrate in the Transkei and Ciskei, he said: “Well, call it what you like”.
“And you were trained by apartheid-era institutions?” asked Malema.
“Call it what you like,” he said. “Apartheid or no apartheid, the law is the law.”
He said even today, people did not always like the law, especially when it was against them.
Commissioner Dumisa Ntsebeza SC then followed up by asking him about cases he had presided over in the 1980s, in which he had withstood political pressure from the bantustan executive.
In one of them, students protesting against the tricameral parliament had been arrested. Tokota had been called by the justice minister at the time and instructed to “finalise these cases and teach them a lesson”.
Instead he had granted them bail and ultimately acquitted them, because “the law is the law”.
He turned to Malema and said: “You see, that is what I am saying, when I am deciding the facts, you cannot politically manipulate me.”