Picture: Brenton Geach – The NPA celebrates International Anti-Corruption Day with a march by prosecutors and the authority’s staff members outside their building in Cape Town. South African legal institutions have been under attack from all quarters to let in all and sundry because it is easy to bribe, politically blackmail and bend the rules, the writer says.
By Dr Pingla Udit
“We have introduced a rule of law. That never existed for centuries in this country [South Africa] especially under the apartheid regime, when the law was reduced into disrepute.” – Nelson Mandela
Over the past twenty-eight years since the advent of democracy successive government administrations have produced a plethora of policies and priorities towards institutional reform and transformative agenda of the criminal justice system. Currently, the criminal justice system is weakened and in its worst crisis suffering from a global pandemic of Covid19, governance issues, gender-based crimes, kidnappings, violent crimes, corruption, cybercrime insecurity and lawlessness.
State capture is a pernicious form of capture and is a consequence of governance failures and security measures’ inability to deal with corrupt practices, ineffectiveness, and unresponsiveness by the criminal justice system that enabled the National Prosecuting Authority (NPA) and the rest of law enforcement to be prey to unethical practices, tardiness in compliance and an inability to counter and influence. It begs the question: where were the checks and balances in these institutions that deflected from accountability.
The rule of law is fine as a concept, especially if the law is fully enforced. It is the abuse and undermining of the law that is problematic. In political and administrative institutions the lack of accountability, greed and corruption creates a situation of the ‘untouchable’. The social compact is broken between state and public. The state fails to protect and provide for citizens and for people to obey its laws, leading to criminal disobedience. South African legal institutions have been under attack from all quarters to let in all and sundry because it is easy to bribe, politically blackmail and bend the rules.
Over the years the criminal justice system has had its fair share of controversial leaders with political undertones. The lack of decisive attention on crime has over the last few years’ created great instability, in addition to the instability that people face daily. For a criminal justice system to function, it needs systems and processes that work like well-oiled machinery.
Progress or Structural And Human Resource Challenges
In the approach to the resolution of criminal cases and matters, there is largely a disjuncture. The situation is always in dissonance between the prosecutor, police and agencies.
Secondly, case load challenges are huge as many police and prosecutors do not have the time to do long complicated cases with thousands of pages of evidence – when they do get to court and to judges who do not necessarily understand complex fraud cases.
Thirdly, there were challenges in the formation of the Directorate of Special Operations (DSO) and the battle of ideas led to sharp contestation and affected the way Scorpions addressed corruption and organised crime.
Fourthly, the country’s porous border placed a multitude of challenges to modernise the country’s borders and improve security. The multi-agency approach to maintain synergy around the country’s border management agenda generated insurmountable challenges. As a consequence there was a move towards an integrated border management platform with a single command and control located within the Department of Home Affairs.
Overcoming Past Problems in the Criminal Justice System
The operationalisation of this integrated border management platform will ensure all functions taken by multiple agencies will be moved into the Border Management Authority (BMA) to deal with front end functions, as guided by section 97 of the Constitution. This will enable BMA to operate at ports of entry around immigration and borderline issues. Border guards will be statically deployed at vulnerable segments of the borderline. This integrated approach of border management will be able to balance issues of national security and trade facilitation that are critical facets for the socio-economic developmental imperatives of any nation.
A Responsive Police Service to Engender Safety
The police service needs to comprehend and realign with the community and be a serving police, that is, friendly, impartial, available and approachable. A fundamental structural change is necessary for a more professional police service and to reorganise community-policing forums in all communities. The oversight role of the civilian secretariat in the fight against crime, corruption and risk mitigation is a weak link in the administrative chain.
The South African Police Service (SAPS) management forum provides a strategic picture on the variance of issues in their respective provinces, for example, human security in overpopulated areas, economic crimes, money laundering, cattle theft in rural areas, human trafficking, drug trafficking and so forth. What SAPS have been unable to do is to translate the information and statistics into actionable projects, campaigns and operations more effectively in its fight against crime over a long period. If crime is rampant at local level, it then begs the question why the proliferation of staff and generals at national level and thereby unnecessary utilisation of resources. The monopoly of legal and constitutional competencies that the police enjoy, have a direct interest in not cascading/or delegating/sharing to other spheres of government as it seems that the police are ‘resistant’ to negotiating themselves out of power, as with it goes resources.
There is a need to revise the training curriculum of the police to include the Bill of Rights, ethics and integrity in leadership. Police are on the frontline of forensic evidence collection, more training is necessary to ensure evidence is not contaminated, compromised or lost. Intelligence work urgently needs to be sharpened together with the development of analytical skills, problem solving and risk analysis. There is a need to sharpen understanding on commission of crimes ensuring a separation of white-collar crime and other major and minor crimes.
As gender-based violence is difficult, police training can draw lessons from the United Nation Women Handbook on Gender-Responsive Police Services For Women and Girls Subject to Violence (2022). The focus is on “prevention oriented policing that is gender-responsive, trauma-informed and perpetrator focused”. In this context, the role of the prosecutor and working relationship with the police and the need for prosecution presence at police stations is crucial irrespective of the legal system.
“Prosecutors perform an active role in scrutinising the lawfulness and propriety of investigations and the gathering of evidence, … at least in deciding if a prosecution should continue,” according to the UN handbook.
There is a need in South Africa to design an application where women and children can easily report a crime without travelling distances to a police station.
To make progress and deal with backlogs, the police and prosecutor need to make use of technology and digitisation of all documents, and an integrated process where there is a digital signature at each level, to facilitate tracking documents and cases. Once a docket is open, technology should be utilised in a process of sharing information between prosecutors, heads of departments and the police. There is also a need for an oversight process between an investigator and a prosecutor.
Access to Justice for the People
A new NPA came into being headed by a National Director of Public Prosecutions with most senior advocates who were apartheid era prosecutors. In the recent past, given the legal quagmire of state capture, how has reconciliation among those who were complicit and culprits of state capture endured, including all officers of the court. There is a need for an NPA that is bold to deal fairly and justly with criminality and punishment.
The NPA has no clear mandate from the Department of Justice or as a stand-alone. It is a hybrid institution. This foregrounds the responsibility of the minister of justice, and the question of independence is a practical issue of personal independence and institutional independence. If can make all prosecutors personally independent, then the caveat is that there were attempts in the past to influence prosecutorial decision-making. In recent developments, there has been marked increase in the standard of prosecution from the newer intake with increased standard of employees having to write exams at outset and with new appointees more efficient in finding out what investigations are outstanding.
Courts and prosecuting service: The NPA because of its Act has some investigative capacity. There are delays in processing matters in court and in the problem of understanding corruption. Many prosecutors and investigators deal with corruption as fraud. This does not go far enough to deal with corruption in the country. In money-laundering and complex crimes, some magistrates and prosecutors reduce everything to fraud for quick conviction. When they decide to go the prosecution routes, part of the problem is delays and postponement in prosecutors trying to wrap their minds around issues and not necessarily being skilled enough in complex matters.
There is a need to reassess curriculum training of prosecutors and magistrates, as there are a lot of overlaps in law enforcement with the exception of writing judgement. Training should begin to cater with complex crime forms and to ensure a quasi-judicial role and priority in terms of understanding complex matters in court. This quasi-judicial training could form a core part or be an addendum. The system needs to be geared to court annexed (section 41) mediation. The prosecution service has to be fully resourced for this training. Mediation and dispute resolution lends itself more under civil matters rather than criminal law. The latter may only afford an accused a plea bargaining opportunity. In drawing on lessons from international jurisdictions, Canada is instructive as prosecutors play a key role in their criminal justice system and this role is quasi-judicial in nature. Their main objective is to prosecute federal offences and provide legal advice and assistance to law enforcement.
Corrective Action in Managing the Case Load
The mantra of lack of capacity and resources at NPA necessitates smarter strategies. In the art of battle use whatever limited resources are available to take the battle forward. The Zondo Commission Inquiry Report is a good example where structural challenges can be overcome, as the Zondo Inquiry is a parallel note of prima facie evidence. The standard is what is in the interest for the public good.
In examples of quick prosecution, the focus is how to manage workload of outstanding cases on the court roll, and then cases that come to bear to make provision for unknown times as in an emergency as they do in the private sector and a need for risk analysis “What if?” before it comes up.
The real challenge is in the manner in which courts function – 80 percent of workload is dedicated to lower courts and high courts. Prosecutors have over the years learnt the art of juggling the load of work, dragging on big cases and processing smaller ones. The control prosecutor in lower courts has a prosecutor group that weekly goes through dockets and manages case flow.
The NPA needs to be more innovative on how to deal with case loads to move towards greater efficiency. Qualified legal professionals can shorten the time lines on case load. In the immediate situation, the lower courts are functioning quite well and backlogs are being managed. The number of cases counted, number of plea bargains, number of backlogs and number of outstanding cases is a reflection of professional efficiency, performance and court administrative processes in the criminal justice system. It would be a good measure to assess the impact of plea bargains. Further analysis could have been done on these points if verifiable data was accessible.
The independence/autonomy of institutions in the Criminal Justice System has been in the public debate in relation to the NPA, DPCI, Ipid and the IGI. The question of an independent, structural and operational DPCI-Hawks-Scorpions (DSO) vis-à-vis the minister of police was part of a Constitutional Court Glenister judgement (2011). This Glenister judgement is increasingly being presented in the call for independent institutions. It is important for Ipid and other relevant bodies to be co-ordinated to harmonise an effective implementation of the broad justice system. Such harmonisation should be holistic rather than done in silos, seeing complementary departments as competitors rather than joint enhancers within the system.
Criminal Justice Continuum
The Department of Justice and Constitutional Development in tandem with an accessible justice system have been on the criminal justice battlefront to modernise the system with the reform off eighteen Bills in process. There is a cause to increase efforts from international extraditions to more Special Commercial Crime Courts, roll out of digital projects to modernise components of the system and greater technological advancement in improving efficiency and effectiveness in meeting delivery of justice.
Unfortunately, the Truth and Reconciliation Commission (TRC), work remains largely incomplete. The full value chain of justice has not been met in terms of reparations and convictions. The TRC deliberately undermined and sabotaged at a political and sectional level. Good law is invariably frustrated at implementation, for a lack of implementation level. If the political will is there, then a lot of the outstanding cases can be followed up on, for justice. Many families who suffered heinous apartheid crimes are still intent on prosecutions to receive long overdue justice for victims of apartheid violence.
Currently injustice prevails against whistleblowers and witness bearers in the public and private sector. They need protection otherwise the concept is a non-starter. Very few would come forth, risking their life and those of loved ones, if they perceive the personal risk, sans security. Some challenges faced by whistleblowers are victimisation, joblessness and weaponised use of disciplinary procedures leads to injustice being compounded. Attempts to place whistleblowers into witness protection and safe houses and physical protection has failed. New innovative measures need to be considered to protect, empower and ensure the safety of whistleblowers and witness bearers.
In this democratic period, Correctional Services have good policies, vocation and commitment, and rehabilitation with the benchmark of the Bill of Rights. Former president Nelson Mandela showed foresight in understanding the law during the Rivonia Trial, and the trajectory of apartheid law on humanity, and its impact on a human being and in being vulnerable, when he stated: “that no one truly knows a nation until one has been inside its jails …”
The United Nations General Assembly Resolution adopted on December 17, 2015, 70/175 United Nations Standard of Minimum Rules for the Treatment of Prisoners (known as Nelson the Mandela Rules). The United Nations General Assembly Resolution Rules adopted on December 21, 2010, the Treatment of Women Prisoners and Non Custodial Measures for Women Offenders (the Bangkok Rules).
Correctional services reforms need to address aggressively restorative justice; alternatives to imprisonment for minor offences; move from an adversarial system of a capitalist, patriarchal case that causes more social harm as the fabric of imprisonment is based on inequality, not necessarily on equality, fairness and justice. To ensure or secure restorative justice is not abused, it’s important to ensure anti-abuse enforcement measures are also in place. Because of such abuse the public view is that there is a revolving door that will continue to predominate.
What Needs To Be Done?
The criminal justice system needs to build capacity, be independent and impartial and have greater oversight over governance and ensure justice for all citizens. The accessibility of the public to the criminal justice system necessitates implementation and political commitment.
Firstly, there is a need to review case time lines as it creates an illusion of (an inept) criminal justice system when cases drag on for a decade or more. Cases need to be attended to swiftly, efficiently and successfully otherwise it will not bring back confidence in the criminal justice system. It is imperative after the betrayal of state capture and political corruption that all Zondo Commission Inquiry Reports be investigated further to gather more evidence to start prosecutions together with the Truth and Reconciliation cases, Bossasa, VBS Mutual Bank, Esidimeni and Marikana.
Secondly, the criminal justice system needs strong leadership who know where they are leading with the correct values. Leadership has to infuse values in taking responsibility for individual efforts, as well as collective responsibility. The kind of effective leadership qualities needed in this period is a strong ethical base with a passion for justice, significant leadership skills, not just a lawyer to direct a programme of implementation, and a visionary with ability to lead a large organisation.
Thirdly, there is a need for greater oversight and structured co-ordination for the law enforcement institutions and a more strategic approach on priorities. It therefore necessitates tighter coordination as well as deeper integration of all the different resources and systems needed to combat crime, corruption and political instability in the country.
Democracy is in crisis, inequality has increased, gender-based violence is now a pandemic, the economy is in deep crisis and our global competitiveness rating has dropped. An existential threat prevails as a person in a shack has no work, no electricity, decent roads, no street lighting providing safety and no water, dignity and equality. A person steals copper wire and railway tracks far away from those who are comfortable. The state is absent, as in Mexico, Eastern Congo and Northern Mozambique. In a flood or drought situation, as in Kwazulu-Natal, the country exist without early warning systems, emergency action plans or an evacuation plan. The criminal justice system should have greater foresight in the future to thwart state capture, governance failure and defend and protect the constitution and territorial integrity.
Dr Pingla Udit is a researcher and writer.