SA’s Zuptoid justice system, where foxes beat the hunters – Chuck Stephens

CAPE TOWN — For Chuck Stephens, Executive Director of the Desmond Tutu Centre for Leadership, the foxes in South Africa are beating the hunters. Wily and with enough stamina to outrun the hunters, the foxes achieve the seemingly impossible – stopping the actual hunt altogether. Yes, the hunters mount their horses, yes, they ride out with dogs yelping. But actually, they’re just taking an afternoon canter with no intent of pursuit. The peasants seem to believe there’s a hunt going on. But, in fact, the foxes are in charge. It’s an apt analogy, given chief Msholozi-fox’s grand master class. He’s the hunter-whisperer, if such a fantastic metaphor is vaguely possible. In South Africa, it is – the horses are saddled up each time angry peasants appear at the gates, hoes and pitchforks at the ready. Stephens reminds us that justice delayed is justice denied. I’d love to see a timeline graph depicting our more prominent politicians and SOE executives whom the populace has been up in arms about. Tracking the timeline from prima facie case to opening a docket, to the first appearance in court. Long lines with no blobs signalling a court hearing. It’s a national past-time, saddling up the horses. Foxes rule. – Chris Bateman

By Chuck Stephens*

If you think that the reason it is taking so long to get Jacob Zuma his “day in court” is that he is the President, then think again. It happens to all of us – as a routine. I am speaking from experience. I am not spending millions of Rand like he is, but I am spending hundreds of thousands. And the same thing happens – the accused keep slip-sliding away. In his case the delays are helpful, but for most of us they are exasperating.

First, most people would rather not confront their demons. They would rather swallow the losses or damages, and rationalize that it would cost more to take legal action than what they would recover. In my view this is answer number one to the question “Why does it take so long?” They don’t even want to ride out on the fox hunt, they just applaud those who do. They linger in the hunting club house – in the shadow of hatred of “impipi” – guessing that it is just safer to stay away.

ANC president Jacob Zuma looks on at the National Assembly in Cape Town, in this September 25, 2008 file photo. REUTERS/Nic Bothma

Second, foxes know that if you give them the slip often enough and keep running away, the hunters may eventually give up the chase. There are a number of tricks that foxes can use to give you the slip. Not all of us can run for president to get off the hook, so I have unpacked from my own experience how they do it. And believe me, they learn it from running with the pack, just like little foxes do.

In their book The Fall of the ANC, Mashele and Qobo had a name for the breed of leaders that came to the fore after Polokwane: “vindictive triumphalists”. For example, it was just plain vindictive of the President to bump Blade Nzimande out of the Cabinet. Especially when he kept hanging on to some Ministers and parastatal Board members who should have been dispatched long ago. This is how the little foxes learn how to do it. They watch their role models; they practice in their own projects and settings; and that is how corruption and waste get to reach epidemic proportions.

Mpshe let Zuma off the hook in 2009. Many of us were horrified. This was a great example of Triumphalism; “might is right”. It took eight years and several more scandals (like Nkandla and State Capture) before this was pegged “irrational” by a high court judge. This has really shaken the pack of foxes. Their get-away plan is failing.

African National Congress (ANC)

But we run into this NPA irrationality on a regular day-to-day basis. I am not a specialist in the sphere of Justice. But as I see it, the key actors are judges, prosecutors, investigators and lawyers.

One thing that slows down the fox hunt is that not all judges remain in charge of their court rooms. One way that they are undermined is for prosecutors to “take charge” in that setting. This is actually one manifestation of State Capture. DA leader Maimane says that the NPA is totally captured, and I have experienced it first-hand. In some court rooms, the prosecutors are in charge and the Magistrate is just a mere inconvenience. That is if the case even gets to court; prosecutors can control that.

But the chase goes deeper… prosecutors can’t function without case dossiers and these are prepared by investigators. Usually but not always from the police. There are private investigators, too, but just as there is a big difference between state hospitals and private clinics, there is a huge difference in competency between SAPS “investigating officers” and PI’s. It’s a parallel to the difference in quality between public education and private schools; SAPS investigators are sub-standard.

A good image of this is the legendary Gerrie Nel. He made his reputation on good quality investigations leading to successful prosecution. After the Scorpions were closed (another slip by the foxy triumphalists) he has eventually landed at AfriForum. What is happening is obvious – the ranks of SAPS are not up to par, and thus they deliver sub-standard dossiers to the prosecutors.

If you complain to their superiors (at the precinct, the SAPS complaints desk, the provincial Commissioner or even the Minister of Police himself) they tell you that they can only address SAPS issues. The NPA is independent, so they can’t discipline prosecutors.

Minister of Tweets Fikile Mbalula. More of Zapiro’s brilliant work available at www.zapiro.com

Yet on a day-to-day basis, here is what happens… when a case is opened at a police station, you are supposed to get a case number. (Another way that they can give you the slip is to refuse to open a case at the precinct, or they can just “open an investigation” and not a docket. In other words, they are closing you down right in the precinct, for reasons known only to themselves. Stonewalling is another manifestation of triumphalism). The case number should be SMSed to you the next day. Then the third day, you should get a second SMS with the name of the “investigating officer” appointed to your case.

What they don’t tell you – I only learned this from engagement – is that BEFORE that “I.O.” even starts, he must sit down at the Magistrate’s Court with the prosecutors to discuss all new cases opened. And if the prosecutors reckon any case is “unwinnable”, they simply “withdraw” the case. They do not SMS you, it may take you months of persistence to discover that it has been withdrawn. This is very very subjective and open to vindictiveness. Probably the prosecutors know you and have their own prejudices? Like a strong gender bias? Or they play the race card?

The gender slip is pretty foxy. In my town, the SAPS station commander, the Control Prosecutor and the one and only magistrate are all women. You can imagine what the chances are of a white man reporting crime or corruption in a setting such as this. It never gets to first base.  Here is how they do it…

The phenomenon was recently described by Frank Chikane in an article called You have been warned: “corruption mutates political parties into mafia cartels, which must link up with the similarly dubiously inclined elsewhere at home and beyond borders. The state ceases to be an entity for and about the people, and instead acts for and on behalf of the cartel.”

In fact, this is WHY they closed the Scorpions. This was the intent, not just the outcome; to admit political interference into the Justice system. It was one manifestation of State Capture – a step taken to weaken the independence and thus the effectiveness of the Judiciary. While we all wait to see whether the NPA has the guts to take on the State President, let us be honest that subjectivity, prejudice and vindictiveness reign at the lowest level of the Judiciary – in the Magistrates Courts.

The cartels may not be formal in terms of POCA’s definition of a “gang” – with a name like “Hell’s Angels”! It may just be an informal web of relationships between policemen, Home Affairs officers, prosecutors and social workers who all drink together at the same shebeen on the week-ends. It doesn’t even have to be a shebeen in Saxonwold for this to turn into plotting and revenge.

But any Organization Development consultant will tell you that in the work place, often the informal structures are stronger and more difficult to change than the formal ones.

So the police investigators now have targets for their shared vindictiveness. Triumphalism kicks in because they think they outnumber the “soul-battered mourners” (the other kind of ANC people, according to Mashele and Qobo… Stalwarts. Veterans. “Dangerous NGOs” to quote David Mahlobo). Bodyguards become hitmen. Or policemen just gossip to ruin your reputation by character assassination. Or when they really get mad, they frame you…

They used to say “I am short of money, so hit me”. Now they say “I am short of money, so arrest me”. Unlawful arrests are detrimental to reputations, so the soul-battered mourners are getting wise. The fox throws them off the scent, but they sue the State! There have been some big concessions – one complainant recently got R200 000 in damages for being held for 3 days in the clink.

Sadly, there are cases of people being imprisoned wrongfully for years, not just days. But you also have the sheer delay in getting cases to trial, like the prosecution of the President’s son. Gerrie Nel explained:

“The family were never informed about the decision not to prosecute Duduzane Zuma. They were never given any financial assistance. They never received any help other than R5‚000 from the taxi association for the death.”

“This is a young family. When Phumzile Dube was killed her daughter was just two years old. She is now five and the family cannot afford to send her to creche.”

Gerrie Nel announced he will privately prosecute Duduzane Zuma, after the NPA decided not to prosecute him after he crashed into and killed a woman. More magic available at jerm.co.za.

Delays in getting cases to “the bench” are happening all the time, and the chief beneficiary of this is Duduzane’s father. He is one elusive fox!

If I sound a bit cynical, it’s because I am. Justice delayed is justice denied. And yet I have seen a whole dossier go missing at the Hawks. It vanished into thin air – just after the provincial HOD of the department we had reported was promoted to be a Minister! I have seen months turn into years and the foxes are still zigging and zagging. The 8-year fox hunt to get Jacob Zuma the day in court that he once said he wanted is not exceptional. It happens to all of us. I just attended Pre-trial in August 2017 for a fraud charge that I laid in September 2012. Five years!  And it will only come to trial in another year or so.

God help the Department of Justice complaints people to figure out that it is basically pointless for a victim to lodge a complaint at SAPS. It’s like blaming the positive terminal on your battery when your car won’t start. It’s not just one terminal – it’s the whole damn battery!

Judges need to “own” their court rooms. Prosecutors need to stop playing hide and seek. And only a viable rapprochement between SAPS investigators and private investigators will ever get to the bottom of corruption and crime.

Federal Bureau of Investigation (FBI)

Probably it will take the FBI getting involved in the Gupta debacle to finally kick-start some charges emerging? Months of dithering have just given the Triumphalists time to hatch another conspiracy theory.

But un-capturing the NPA may only be possible by electing another party to govern in 2019.

And as for lawyers, it seems to me that they are another kind of victim. Cases drag on for so long that clients lose confidence, but above all, they lose hope. One good way to give an attorney the slip is to apply – one year after s/he obtained a judgment and even the Warrant of Execution – to have the judgment rescinded. Meanwhile the Sheriff has seized the Defendant’s assets and they are going to auction. Everyone back to the club house! We are going to re-start the hunt tomorrow!

Foxes 1, hunters no score.

  • Chuck Stephens is the executive director of a nonprofit organization called the Desmond Tutu Centre for Leadership, based in White River, Mpumalanga.