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CAPE TOWN — When Chuck Stephens of the Desmond Tutu Centre for Leadership argues that our justice system is like an invertebrate and that only the now-squashed Scorpions had both investigative and prosecutorial power, I’m reminded of just how slow-moving invertebrates really are, gingerly filter-capturing their food with no teeth of any consequence. We’re talking sponges, worms, spiders, crabs and molluscs – all of which ingest slowly, digesting only what they can. Predators just one or two notches up the food chain generally eat them for breakfast, an apt metaphor for the criminals in our mafia-like State who play the system to get away with grand larceny and even murder. We don’t have a lean, agile, justice system, hungry for ever-available juicy prey that can nourish and strengthen it. Instead we have the snail-like, National Prosecuting Authority, in a dysfunctional but allegedly symbiotic relationship with an even more inept police force. Together they combine as a shining metaphor for invertebrate life. Read on to discover just why and how. – Chris Bateman
By Chuck Stephens*
How can a system that cannot hold its own cadres to account internally, ever be expected to hold its trialists to account? The Justice system moves so slowly that you have to look closely to see if there is any movement.
We often hear of the so-called “Stalingrad strategy”. Defendants delay their cases ad nauseum. Their cases never come to trial because they manoeuvre the system on process. The content of their cases becomes secondary, inconsequential. Months turn into years, and years into decades.
Is the Department of Justice exempt from Batho Pele? Public services should be provided economically and efficiently in order to give you the best possible value for money. Departments owe you proof that efficiency savings and improved service delivery are on the agenda.
How long will it take to nail some of the perpetrators of State Capture? People are losing hope that anyone will ever be brought to book. They zig and zig inside a system that is invertebrate – that is, that has no backbone. Then they end up arguing that the court of public opinion has turned against them to the extent that they could never receive a fair trial – so they ask for the charges against them to be dropped.
The fundamental problem is that two functions – investigation and prosecution – have been separated. The only unit that could do both was the Scorpions. They closed it for that very reason. That dual role gave it the teeth to bite, and it had the best-ever record in terms of convictions.
Whereas according to the latest police statistics, only one of three cases opened/investigated is ever prosecuted. Basically, the NPA has a strangle-hold on the justice system because it has veto power in terms of which cases to prosecute and which to leaving hanging like a sword of Damocles over the accused. Indefinitely. That is not Justice.
Here are just a few real-life examples from 2018:
The first example is an accused who returned to court with his attorney three times to face charges, sporting a brilliant defense. Each time the prosecutor arose and told the magistrate that the police has failed to give her the Docket. It had been misplaced. Only on the third occasion over a period of four months did the magistrate tell her that if it happened again, he would strike the case from the roll. On the fourth remand, the case file was still missing, so the NPA withdrew the charges against the accused – who still had to pay his attorney for the preparations and for four court visits. That is not Batho Pele – value for money.
In cases like this, those who lose the file or decide to continue with prosecution for dubious reasons should have to pay the accused’s legal costs. It rather felt like the punishment has been meted out before a conviction. If the case was deemed to be un-winnable, this at least meant that the justice system punished the accused with costs, inconvenience and reputation loss.
Look at the legal bills that the state promised to pay for the rogue president! Until the opposition challenged this “presidential perk” in court, and now he and his cronies are having to foot their own legal bills for a change. But this shows the attitudinal malaise that has been at play.
By far most of the incarcerated population in the world is in the United States. This fact is usually levelled as a criticism. But does no one else see the link between that and the fact that it has the world’s largest economy, which is booming while South Africa’s is still shedding jobs and shrinking (i.e. in recession)? You need to create conditions that stop people from lying, that promote honesty, and that sequester criminals – if you want your economy to boom. Instead we have ministers who were liars, patronage networks that all but captured the state, and R500bn that was robbed by the looters and plunderers in power.
But back to ground level – a second example is a dispute that has been punted ad nauseum. It was actually opened in 2016, and the process of summons, plea, discoveries, etc was completed in 2017. But as the plaintiff’s case was flimsy, and she had relatives in the police precinct, so all through 2018 there was just one remand after another. This gives time to the criminals to try to take out the defendant another way.
They now come after you with innuendo and crimen injuria, making up the wildest stories. I have to empathise with Minister Pravin Gordhan. Confession is no longer the way to redemption – it is now blame-shifting that atones for your sin. Does anyone seriously believe that Gordhan was laundering money through a Canadian bank account? That is ludicrous. Entirely out of character for him – but it show you how they think! But that is exactly the way the game is played. And the justice system is not there to assist the plaintiffs to push their cases forward in real time, it exists to give the defendants time and space to mount these ludicrous counter-offensives.
The third and last example is at the police precinct. On five different occasions over a one year period, the police refused to open genuine cases involving malicious damage, theft, assault, intimidation and trespassing. Their excuse on each occasion was that “there was already a case open”. So when they know that someone is already in a dispute with someone else, they then turn away new business at the reception counter. Combined with the delays at the courthouse, this only creates conditions for confrontation and conflict.
Each and every criminal misdemeanour should be recorded by the police – even if that means introducing a numbering system that can “connect the dots”. Put five or ten incidents if necessary under one case number, but don’t turn away authentic reports of criminal activity.
In closing, as you may have guessed already, these three examples happened to the writer in 2018. I am not a journalist – a reporter who goes out looking for stories. In fact, I only write comment, I don’t write news. Strangely enough, the stories come looking for me!
So this is my testimony – that the justice system is too fluid and too slow. Justice should be like the skeleton of society – commanding its very shape. Without hard bones, deep inside, the body cannot operate with speed or agility. So until the justice system comes to terms with itself, and its own limitations, it cannot possibly create the conditions in society for truth, honesty and fair play to prevail.
This is why South Africa is fast becoming a Mafia State. The gangsters are winning, because the justice system has no backbone. It is too slow and too clumsy. And the great divide between investigating crime and prosecuting it has become a deep wound that is not healing.
- Chuck Stephens from Desmond Tutu Centre for Leadership writing in his own capacity.