Richard Anthony Chemaly
This kind of issue is a typical go-to theme for high school debating because there just is no definitive answer.
From Hillsborough to Moses Mabhida, historically, we’ve had various scenarios revolving around bad fan conduct and dragging the respective brand into it. Obviously it’s not an exclusively South African problem but that doesn’t make it a problem South Africa shouldn’t tackle. It’s also a problem we’ve tackled well.
This weekend, the internet gave us a delightful video of South African rapper AKA succumbing to the great delusion that he’s an 80s rock star. In short, he attempted a stage dive and the crowd was not in the mood to catch him. While they hold no legal responsibility to catch him, it’s likely they would hold no moral responsibility either. Would the opinion change if the result were more serious … say if AKA had died as a result?
The issue is a typical go-to theme for high school debating because there just is no definitive answer. It’s often framed as whether a sports team is responsible for the conduct of its fans. Ignoring the incentives minefield it would open should opposing team fans masquerade as that of another team and cause some ill-willed violence, the practicalities around such a policy tend to offset, if not outweigh, any benefit of such a policy. That suits the law just fine, with every instance argued on its own merit. It tells a good story around the meta of our legal framework, one that could be adopted more broadly if we get slightly more creative.
Legal certainty is the reason the law exists. As a society, we like to know what the immediate legal consequences of our actions are. What we don’t like is placing ourselves in positions where we can potentially be in trouble, especially where such trouble can easily be avoided.
We even saw this at Loftus this weekend when a herd of supposed Blue Bulls supporters were kicked out of the stadium for their violent behaviour. Did the club have a legal responsibility to kick them out? It’s not certain. Was it easy to kick them out? Yes! Would the club rather err on the side of caution, kick them out, potentially lose a few supporters and avoid a potential three years of litigation on what their responsibilities may or may not have been in the instance? Absolutely!
Why is this important to notice though?
What many people seem to forget is that each time a law is passed, two things happen. Firstly, every law created is a forfeiture of some freedom. Generally that’s justified; I forfeit my freedom to kill you. You forfeit your freedom to kill me. Boom! A law against murder is born. But then it gets a bit dicey. What happens if you’re killing me? Do I still forfeit my freedom to kill you? In the instance of taking life, fortunately, the lines are relatively clearly drawn. It does, though, illustrate the importance of context when making laws and how the laws need to try to address that. It gets way more complex when addressing, for example, frictions between access to information and privacy.
As laws get more complex, so do the underlying contexts in which those laws are placed. Remember, too, that laws need to be universal. One cannot have separate laws for different contexts, so either the law must be bland and generic or needs to include consideration for each potential context. In terms of the prior, that generally numbs the effect and, in terms of the latter, it leads to exclusion of particular contexts.
The Bulls were likely aware of the club fine imposed on Kaizer Chiefs back in 2018 and the resulting resignation of then coach Steve Komphela as a result of fan behaviour, none of which were definitively required in law but happened by operation of risk management and control. This probably motivated them to act against violent fans … and do it in a manner in which the context suited.
Imposition of rules, regulations and standards could have seen the situation handled with different and possibly more harmful results.
Those implicated directly were, of course, arrested because the law already caters for direct violence.
Fans wanting to be violent will be violent and we need to work out how to prevent it. As I’ve said before, sometimes it’s not a simple matter of changing the law. Various classes of people get protection under our law; from women to the differently abled to the queers. It doesn’t mean they always enjoy that protection in reality.
So congratulations to the Blue Bulls for acting decisively, not because the law required it but because it was the smart thing to do … and congratulations to AKA’s fans for not catching him – not because they shouldn’t have but because if you’re going to jump off a stage in 2020, you need to feel the consequences of a silly decision.
A legal system works best when it encourages good behaviour, not when it sets a right-and-wrong checklist. By not giving a straight answer as to who is responsible for the action of the fans, our law does exactly that.
Richard Anthony Chemaly.
Richard Chemaly is an entertainment attorney, radio broadcaster and lecturer of communication ethics
For more news your way, download The Citizen’s app for iOS and Android.