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Is Jub Jub a complete prick?
Sunday, March 14, 2010 
[ Reads:4366 / Comments:44 / 1498 ]

Until last week I hadn’t heard of this character Jub Jub. Apparently he is a musician and some sort of celebrity. He was a contestant on the current series of Survivor South Africa but asked to be sent home early from the island because he was afraid he had a diseased penis. On the few episodes he appeared in he came across as a lazy little tosser and I don’t think his fellow contestants were terribly sorry to see the back of him. Mysteriously his diseased prick was no longer newsworthy when he arrived home so I think we can safely assume that he didn’t like the idea of having to put any effort into supporting his tribe on the island. Jub Jub isn’t a team player.

Last week he and a buddy ran out of talent while they were drag racing Mini Coopers and ploughed into some onlookers killing four teenagers. According to press reports the first thing Jub Jub and his buddy did was to get on their cell phones and check with the insurance company that they were covered for drag racing while under the influence of either narcotics or booze.

It’s a great pity that the police arrived and took the two into custody because there was a chance that some real justice would have taken place on the streets and they would have been torn limb from limb. There are times when mob justice is far preferable to the creaking and pedantic machinery of the law. Now they are safely protected from the baying mob and if they have any sense they won’t even apply for bail. They’re much safer in a police cell.

The charges were rather dramatically upped from culpable homicide to murder which is worrying because I’m not sure a murder rap can stick unless there is what the law I studied referred to as “malice aforethought”. It’s a long time ago now (about 40 years) but for a murder charge to work you need the mens rea and the actus reus; in plain English, the evil thought followed by the evil act. So while the charge of murder may look very serious indeed and satisfy the public’s lust for revenge it may be an elaborate way of letting a connected brother off the hook. After all, who can name the dead? Are they celebs? Are they friends of JuJu Malema? Do they party with the black diamonds? If the answer to any of the above is no then their lives are insignificant. They just happened to be in the wrong place at the wrong time.

I was watching a news clip on Sky this week which described how rich and well connected Russians (translation: approved thugs) are allowed to drive at high speed in the fast lane in their luxury limos. Last week one of the plutocrats crossed into the oncoming traffic (as he is permitted to do) and killed a mother and daughter in a head on collision. The witnesses say it is the plutocrat who was at fault because he was driving recklessly but the official view is that the well connected can do no wrong. So the police turned up and pronounced the tragic accident all the fault of the dead woman and her mother who were driving quite legally in the correct lane. A man is left without a mother and a wife and will probably get a bill for the plutocrat’s car repair. The anger and the frustration of the Russian people at these frequent abuses of power is growing and so should our anger be growing.

When we read of the ANC’s spin doctor, Jackson Mthembu, being arrested for alleged drunken driving early one Cape Town morning and then breaking into the “Kill the boer” song in a radio interview then we know we are on a par with corrupt Russia. According to reports some officers at Mowbray Police station refused to open a case docket when they realized the drunken buffoon with the stupid grin in the charge office was a well connected ANC member. Thankfully the officers who had arrested him made sensible alternative arrangements. Clearly Mthembu couldn’t give a damn about the law because he knows his buddies will get him off.

Maybe the same will happen to Jub Jub. Malema will intervene and point out that he was just having a bit of innocent fun and that it’s the whiteys who just don’t understand the black culture of drag racing. My guess is that a docket will be lost, an entire file will go missing, the charges will be inappropriate, a date will have been altered, Jub Jub’s name will be spelt wrong or the cars will have found to be faulty (watch out for this one BMW) .

I’ll be very surprised if Jub Jub spends a significant time in prison and even more surprised if Jackson Mthembu loses his job or is in any way inconvenienced just because he was as pissed as a parrot early in the morning. This my friends is the country we now live in. The tribe has spoken.


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6441 Stewart Wood  [ Wednesday, March 24, 2010 | 5:57:40 PM ]
The charge of murder is indeed the Trojan Horse which will allow this moron Jub-Jub to walk away after acquittal - who organised this totally inappropriate charge is the real question of course? Let us not foolishly believe that the justice system in SA is any less corrupted than anything else that the ANC has a hand in!

There is not a chance of a conviction under that charge of murder.

As an aside, 'drag-racing' is a quite respectable and recognised motor sport - successfully handling a 5000 hp real drag race machine is a very different thing to what these two 'diseased penises' were doing!

Of course the fact that in Soweto crowds of imbecilic youngsters line the roads as admiring spectators when fools such as this carry out silly antics with motorcars no doubt contributes massively to the problem.
6402 Bernie Madoff  [ Saturday, March 20, 2010 | 2:57:05 AM ]
Mike,
I realize that the culpable homicide will still stand.

This discussion about whether Jub Jub should have been charged with murder will inevitably continue. It is extremely important for a variety of different reasons, and I am certain that we will both return to it, when the case actually reaches court.

Jub Jub is, of course, denying all the charges. Only time will tell, if the prosecutor can prove her case.
6401 Mike Trapido  [ Friday, March 19, 2010 | 11:31:15 PM ]
Bonita the sad part is that the guys who understand the least shout the loudest..

If a person is charged with murder and the evidence does not support that charge but other charges HE DOES NOT GET OFF THE OTHER CHARGES because he was charged with murder.

There are a number of other competent verdicts for which they can be convicted if murder is not proved.

In the decision of S v Ngubane 1985 (3) SA 677 (AD) an accused, who was charged with one count of murder, pleaded guilty to the COMPETENT VERDICT of culpable homicide

Accordingly if MURDER is not proved by the state then if the evidence shows Culpable Homicide then they will be convicted on that. charge.

It's not a game show where if you don't win the murder prize you get nothing. If Murder is not proved and Culp is they go down for Culp.
6378 Bernie Madoff  [ Thursday, March 18, 2010 | 4:30:36 PM ]
Bonita Geringer,

Thanks for your suggestion, but I am not a South African advocate. Just a con-man, residing in an Americn penitentiary!

But we will see how this turns out, and whether you and Attorney Trapido, are right to suggest that it is "murder". As i said, if he has decent lawyers, even if found guilty, he must surely win the case on appeal, because the murder rap is nonsense.
6376 Bonita Geringer  [ Thursday, March 18, 2010 | 3:37:50 PM ]
Bernie,

GIVE IT A REST!!! The last time I checked, you were basically having a debate with yourself...everyone gave up a long time ago trying to have a rational discussion with you....in case you have not noticed.

Since you are so intent on insisting that a charge of murder will not be upheld in an SA court of Law, why don't you ring Jub Jub up and offer to be Counsel?

So pour yourself a nice 12 year whiskey, pop the valium bottle open and chill.

I rest MY case!
6375 Bernie Madoff  [ Thursday, March 18, 2010 | 4:24:52 AM ]
If one really thinks about it , the state of a "dolus eventualis" mind is inherently reckless. And that is precisely why, the crime of "manslaughter" exists.

Now South African prosecutors and commentators might try and up the ante, by turning manslaughter into murder. But by doing so, they make a mockery of the criminal law.
6374 Bernie Madoff  [ Thursday, March 18, 2010 | 3:55:32 AM ]
Now assuming that Jub Jub was "high on drugs", I cannot imagine that it could be proven that he "foresaw the possibility that someone could be killed, but nevertheless continued."

6373 Bernie Madoff  [ Thursday, March 18, 2010 | 3:49:18 AM ]
PRETORIA NEWS

Criminal law expert Kobus van Rooyen said the driver of a car involved in a fatal accident might be charged with murder.

He pointed out murder was the intentional killing of a person, when the killer knows of the possibility that the act is unlawful.

There are three types of intent - direct intent, indirect intent, and intent where the accused could have foreseen the possibility that someone could get killed, but nevertheless continued with the act. This is known as dolus eventualis, a concept first raised by the Appeal Court in 1964, when it held that if you pass another vehicle on a rise where there is a solid line and kill someone, this could justify the inference of intention by way of eventuality.

"The state will have to prove that the driver of the vehicle foresaw the possibility that someone could be killed, but nevertheless continued. If the driver is not convicted of murder, the conviction could be an alternative charge of culpable homicide.
6370 Bernie Madoff  [ Thursday, March 18, 2010 | 1:36:41 AM ]
Bonita Geringer,

Thank you for you comment and advice. Sorry to bore you to "death" (oh dear, "dolus eventualis", I am so sorry are you ok? I didn't meant it! )

I reiterate that I do not believe that if Jub Jub was in The UK he would be charged with murder.

Moreover, I do not believe that a South African court will find Jub Jub guilty of murder, providing that he has a decent advocate and is able to go through the appeals process. And the reason is quite simple... it isn't murder!

I rest my case.
6372 Bernie Madoff  [ Thursday, March 18, 2010 | 1:12:43 AM ]
typo

And is he being charged with the attempted murder of everybody else in Soweto? If not, why not?
6371 Bernie Madoff  [ Thursday, March 18, 2010 | 12:51:04 AM ]
Bonita Geringer,
Is Jub Jub being charged with attempted murder re the two who were injured and are in hospital?

And is he being charged with the attempted murder of everybody else in murder? If not, why not?

You see "dolus eventaulis" re murder is not a doctrine that can be practically applied to motoring fatalities. And you, and Attorney Trapido, are not sharp enough to realize it.
6362 Bernie Madoff  [ Wednesday, March 17, 2010 | 5:44:40 PM ]
Mike,
When you have time, please provide your readers with South African murder cases where "dolus eventualis" was found to be sufficient "mens rea" to secure a conviction. I would be very interested to read the judgements.

But if such cases do not exist, you are duty bound to inform your readers.
6361 Bonita Geringer  [ Wednesday, March 17, 2010 | 4:23:16 PM ]
Bernie,

About a thousand words ago, you mentioned something about keeping "shtum". Gosh, if this is your idea of keeping "shtum", I would hate to see you when you are not! Be that now as it may, whilst you make a few good points, your insistence at repeating the same thing over and over is really quite boring and tiresome. This argument of "Dolus Eventualis".... I do not agree with you, I agree with Mike 100%.
In S v Sighwala Hommes JA set out the following propostition :
"The expression 'intention to kill' does not, in law, necessarily require that the accused should have applied his will to encompassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such result. This form of intention is known as DOLUS EVENTUALIS"
The law BEFORE 1945:
Innes CJ said "An intention to kill is an essential element in murder...Such an intent is not confined to cases where there is a definite purpose to kill...."
I honestly don't know how you do not know of Dolus Eventualis, but I suspect that your law studies probably took place prior 1945? Alternatively when you are uninformed, do some research (?) or else you run the risk of sounding ignorant.
6360 Paul Whelan  [ Wednesday, March 17, 2010 | 4:18:26 PM ]
Let us not get too excited by this. Once the police chief is called a General and the others Majors and Colonels, we are assured all this kind of conduct can be stopped.
6355 Bernie Madoff  [ Wednesday, March 17, 2010 | 4:59:43 AM ]
The way that educated South Africans have reacted to the Jub Jub murder charge is symptomatic of a wider intellectual malaise. They have gone along with it like sheep to the slaughter.

Moreover, in my article on this blog about South African identity, I concluded that it is a nation characterized by mass insanity. And in the light of the Jub Jub murder charge, I believe that such an assessment is, once again, both fair and reasonable.
6353 Bernie Madoff  [ Wednesday, March 17, 2010 | 4:50:13 AM ]
An Investigation into the Treatment of Mens Rea :
"In common law legal systems, the exact mental requirement and mens rea standard may vary from crime to crime, but generally, the more serious crimes require a more strict intent requirement, while less serious crimes may require a “less culpable state of mind”—simple negligence for manslaughter charges or no mental requirement for automobile speeding tickets, for example."

If South Africa follows the above, then one has to conclude that "dolus eventualis" could not be applied in a charge of murder.
6352 Bernie Madoff  [ Wednesday, March 17, 2010 | 4:33:42 AM ]
I have googled further and am still unable to find a reference to "dolus eventualis" with regard to English law. Of course, that does not mean, per se, that the term cnnot be applied in England. (However, from what I can glean, it might apply to Germany.)

If Jub jub was high on drugs before he got into his car, the complex mental state necesary for a murder conviction under "dolus eventualis" would surely not apply (assuming of course, that the term is actually recognized in South African law.)

To my mind, any fair and just legal system, can only conclude that he should be charged with causing deaths due to dangerous driving. Putting any other spin on it, would in my opinion, damage the integrity of the criminal law and render it meaningless.
6350 Bernie Madoff  [ Tuesday, March 16, 2010 | 6:48:57 PM ]
Mike,
If I was Jub Jub's attorney, I would certainly be asking the question about whether your article, might have helped to create a climate in which my client was charged with murder.
I would certainly bring it to the judge's attention.
6348 Bernie Madoff  [ Tuesday, March 16, 2010 | 6:39:25 PM ]
Mike,
I also wonder whether, it is right or prudent, for commentators to start upping the "Jub Jub" charge. Such a decision should be left to the prosecutor. That is his job. It is not for "commentators" to start putting in their 2 Rands worth.

I believe that you were wrong to do so.
6343 Bernie Madoff  [ Tuesday, March 16, 2010 | 4:41:08 AM ]
Now with regard to Jub Jub in SA... in the extreme unliklihood that he is found guilty of murder, he will appeal and he will win the appeal. This of course, assumes that he can get hold of some decent legal advice. If he is able to obtain the latter, he will probably spend less time in prison than he would in the UK.

However, I reiterate that I know bugger all about South African law. I am just using a bit of British common-sense.
6342 Bernie Madoff  [ Tuesday, March 16, 2010 | 4:31:34 AM ]
Let us assume that Jub Jub in The UK was found guilty and sentenced to the full 14 years. He would probably be out in 7 years.

However, if it was his first conviction for dangerous driving... maybe 10 years and out in 5 years.
6341 Bernie Madoff  [ Tuesday, March 16, 2010 | 4:26:54 AM ]
Wikipedia
(UK law)
Road Traffic Act 1991, section 1 [1], defines the offences of causing death by dangerous driving and dangerous driving:
A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.
A person who drives a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.
A person is also to be regarded as driving dangerously if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous which includes considering anything attached to or carried on or in it, and to the manner in which it is attached or carried.
In this context, "dangerous" refers to danger either of injury to any person or of serious damage to property; and in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused. In Attorney General's Reference (No 4 of 2000) (2001) 2 Cr. App. R. 417 Woolf CJ said at p 422:
The essential limbs, as is common ground, do not require any specific intent to drive dangerously. Section 2A sets out a wholly objective test. The concept of what is obvious to a careful driver places the question of what constitutes dangerous driving within the province of the jury.
Thus, whereas the underlying test of dangerousness is objective, a test based on the concept of "obviousness" considers the extent of knowledge as to causation. This test is hybrid, drawing both on the actual subjective knowledge that the accused had in his or her mind at the time the actus reus of driving occurred, and on the knowledge that would have been in the mind of a reasonable person (see mens rea and criminal negligence for discussion on the nature of these tests and the scope of the reasonable person).
Conviction under section 1 [2], of the Road Traffic Act (Causing Death by Dangerous Driving) carries a mandatory disqualification. It also carries the possibility of a prison sentence of up to 14 years duration.
6340 Bernie Madoff  [ Tuesday, March 16, 2010 | 4:14:17 AM ]
Mike,
I would imagine that in England Jub Jub might be found guilty of causing death by dangerous driving. I would be surprised moreover if he would stay in prison for long. One might reasonably conclude that it is obscene(non-existent) justice for the grieving parents, but as far as I am aware, that is the usual outcome of such trials.

6339 Bernie Madoff  [ Tuesday, March 16, 2010 | 3:58:19 AM ]
Mike,
It doesn't take me there, and I certainly can't remember meeting "dolus eventualis", when I studied English criminal law.

But I reiterate... I do not believe that if Jub Jub was in England, he would be on a murder charge. And if he was charged with murder, I am certain that his barrister would prevent a conviction.

Please understand that I am not trying to mitigate the seriousness of what he might have done. I have my doubts, however, that a prosecution will be able to successfully prove "malice aforethought". In fact, I am certain that it won't.
6338 Mike Trapido  [ Tuesday, March 16, 2010 | 12:28:58 AM ]
Insert "Dolus Eventualis in English Law" into Google.

It will take you there.
6332 Bernie Madoff  [ Tuesday, March 16, 2010 | 12:01:01 AM ]
Mike,
The letter by Yonela Diko says it all.
Track Yonela down and request a regular RS column?
6331 Bernie Madoff  [ Monday, March 15, 2010 | 11:58:33 PM ]
LETTER IN BUSINESS DAY
The tragedy of the death of four young princes of our nation, carelessly and unnecessarily, at the hands of their brothers, unintentional but negligent, has broken the soul of the people.

But whose tragedy is this? Is it that of the four families who will never know what will become of their children? Is it that of Molemo Maarohanye (Jub Jub) and his friend who may spend most of their adult years in jail? Is it the tragedy of the friends and the school, who have been robbed of four contributors to life and to scholarly output?

Yes, the tragedy is theirs, but it is not theirs alone. The tragedy is yours, sons and daughters of Protea Glen and Protea North; it is yours, lions of the South Western Townships. For too long you have glorified a fast and reckless life; for too long you have given whistles of adoration to a reckless and negligent life. But today, you have paid a high price.



For Jub Jub cannot stand this trial alone. He is your son. You taught him that life was about the race, that life was about winning, by any means necessary. That money, fast cars and beautiful woman complete a township man.

In the townships, every day, people die for money. Bullets fly for money. Money is the heart of the streets. The rate of HIV is incomparable, for in the townships how many beautiful woman you sleep with is what township legends are made of. And yes, the kind of car one drives, how one drives it, and what flamboyance one can display with it is what young boys are attracted to.
So again, I ask, whose tragedy is this? For we all stand accused. The students in townships and small towns, who must fill the whole street competing with cars, unfazed by slowing down traffic, risking their lives in the process.

How we have designed our towns and cities continues to put our kids in harm’s way. In this trial, it cannot be Jub Jub alone who stands accused. We are all on trial.
Yonela Diko
Johannesburg
6330 Bernie Madoff  [ Monday, March 15, 2010 | 11:53:27 PM ]
Mike,
By the way, there is an excellent letter in today's "Business Day" about the township culture that spawned Jub Jub. It actually deserves an editorial.
6329 Bernie Madoff  [ Monday, March 15, 2010 | 11:48:51 PM ]
Mike,
I have not studied SA criminal law. So I cannot debate it on SA terms.

However, in the UK , the prosecution would have to prove that he had "mens rea" when he ploughed into the kids. I do not believe that a prosecution will be able to prove that he could have avoided them.
6337 Bernie Madoff  [ Monday, March 15, 2010 | 11:40:32 PM ]
Mike,
I am not aware of "dolus eventualis" in UK law. I certainly never studied it.

I would be shocked if Jub Jub would have been charged with murder in the UK. If he was charged with murder, a barrister would get him off.
6336 Bernie Madoff  [ Monday, March 15, 2010 | 11:35:21 PM ]
Mike,
I would be very surprised if an English court would uphold a murder verdict. It is manslaughter if you are reckless.

"Dolus Eventualis" is not a term that I can remember when I studied UK criminal law. I have never come across it before.
6335 Mike Trapido  [ Monday, March 15, 2010 | 11:12:56 PM ]
In even easier terms :

Dolus Eventualis says if while carrying out this act (a drag race) you foresee (as any sane human would) that someone could get killed and carry on regardless then that is considered intent not negligence when the result occurs.

The fact that you could not have foreseen the exact way that it would play out is irrelevant.

If while driving you haven't changed your tyres for awhile and one bursts en route that is negligence. Unless the tyres are worn right through nobody expects a flat and a death to result. It's too remote.

In terms of a drag race death is very a real risk you assume when you do it outside a race track. That means you assume the risk VOLUNTARILY while the flat tire (negligence) is INVOLUNTARY but still blameworthy.
6334 Mike Trapido  [ Monday, March 15, 2010 | 11:03:59 PM ]
With all due respect to Yonela the law is as I have set it out below.
6333 Mike Trapido  [ Monday, March 15, 2010 | 11:02:42 PM ]
Bernie - South African Law is very similar to English Law including this area.

If you make a statement like "if there was no INTENTION to kill the children, it isn't murder" the least you have to know is what is intention.

Otherwise how do you know that it isn't intention?

In terms of our law there is a form of intention called "Dolus Eventualis" where a perpetrator foresees consequences other than those directly desired as a possibility of his actions and reconciles himself to the possible result. That is to simply accept the possible result and to live with it if it happens.

How does Dolus Eventualis differ from Negligence?

In dolus eventualis, the result is voluntary and in conscious negligence, the result is involuntary.

In this case if the suspects were racing, then unless they are not from this planet they would know that by committing those crimes (speeding, reckless driving) the very real danger exists that they "could" land up killing others if not themselves and yet reconcile themselves to that risk.

They voluntarily assume a risk which could result from their conduct as opposed to persons whose actions do not lend themselves to foreseeing the tragic consequences that unfortunately do arise.

That's called INTENTION (mens rea) as required for murder.
6328 Mike Trapido  [ Monday, March 15, 2010 | 10:40:00 PM ]
Bernie explain "intention" in legal terms.
6327 Bernie Madoff  [ Monday, March 15, 2010 | 10:35:04 PM ]
Dogs Bollocks,
Do yourself a favour and move to the Amalfi coast.

Whatever Pierre de Vos writes, if there was no intention to kill the children, it isn't murder. I would imagine that the worst that might be proven is that they died due to extreme reckless driving.
6326 Mike Trapido  [ Monday, March 15, 2010 | 10:32:33 PM ]
Dawn do you have the URL I couldn't find it?
6321 Dawn Hull  [ Monday, March 15, 2010 | 9:08:21 PM ]
Pierre de Vos has written a column on why this should be a murder charge on "Constitutionally Speaking". The debate is interesting
6319 David Bullard  [ Monday, March 15, 2010 | 7:05:43 PM ]
That bad?? Shite....where's my passport.
6317 Bernie Madoff  [ Monday, March 15, 2010 | 5:28:05 PM ]
Dogs Bollocks,
To state that we are "on a par with corrupt Russia" is perhaps the most naive thing that you have ever written. If only we were "on a par with corrupt Russia" everything would be ok. Have you any idea, how bad things are here?
6308 Bernie Madoff  [ Monday, March 15, 2010 | 4:30:57 AM ]
Dogs Bollocks (DB)
As you know, Trapido was one of of the first to suggest that Jub Jub should be charged with murder. I thought that he was writing nonsense, but I didn't want to upset him. Moreover, I didn't want to be accused of "abuse". He gets very upset when I start questioning his legal knowledge.
So I have decided to keep shtumm.
6300 Lyndall Beddy  [ Monday, March 15, 2010 | 3:11:20 AM ]
That is what has happened to the rest of Africa.

The French/British left thriving agricultural economies. The Russians, Americans and Chinese colonisers moved in to fight capitalism v communism (when Africa was neither, but socialist).

Where the French/British were not the colonisers - the history was a bit different.

6299 donovan jackson  [ Monday, March 15, 2010 | 2:39:20 AM ]
That's right David and we owe it to ourselves to escape while we still can.
6298 Mathe Maema  [ Sunday, March 14, 2010 | 8:47:42 PM ]
I wish all this wasn't true! The optimist in me wants to keep my fingers, toes and whatever else crossed for true justice to take place but eish .... I guess all one can do is wait and see.