When Police Minister Bheki Cele presented the 2018 crime statistics to Parliament recently, what grabbed the headlines was the 57 murders per day (average) and the debate whether this is like living in a war zone. One statistic in that debate was that 30 000 soldiers lost their lives in the ten-year-long War in Vietnam, while 20 000 citizens are murdered every year in South Africa. Ouch.
Another statistic, though, went relatively unnoticed. It could point to the causes rather than the effects of poor police performance. This figure was simply that only one case out of every three cases opened by the SAPS ever gets prosecuted. This is even more disturbing.
Of course, people reconcile or die and so prosecution can become impossible. Or they are visitors who just report that they were robbed, then go far away. So there would always be some natural case-attrition. But not on this scale.
The example that first comes to mind is Duduzane Zuma’s murder trial. Gerry Nel explained it this way:
“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.”
Delays in getting cases to “the bench” are happening all the time, and Duduzane is second only to his father in this respect. Father Jacob is the Artful Dodger when it comes to the Stalingrad strategy.
I reported a crime in early 2017 after pushing my local precinct quite hard to open it in late 2016. I signed the statement on a Friday after lunch. Then came a weekend. I heard no more and after two months, I started to press for feedback, so as not to be seen as over-zealous. Only to learn that five days after I laid the charges, the case was “withdrawn” by the Prosecutor in the magistrate’s court. I was never informed and only learned of this by contracting the SAPS investigating officer. He had not investigated the case because the NPA called off the dogs, so to speak. But it was left hanging, with no sense of remorse from either the police officer or the prosecutors. They are a law unto themselves, full of impunity, for reasons known only to themselves.
Let me take a guess at some of the reasons. First, the Duduzane Zuma case and his father’s legal saga suggest that both the police and the NPA are very much open to political interference. There can be no doubt of this. President Zuma was very prickly with the Public Protector, even in the public eye. She is on record as saying that she felt intimidated and even feared for her own life.
I can second the emotion. Presidents may put pressure on the top courts, but Premiers put pressure on the regional and magistrates courts. And also on the attorneys handling the cases, who are prone to intimidation. They not only closed the Scorpions - but they now peddle their influence shamelessly.
One example in current events is the ANC Chair for Ehlanzeni district in Mpumalanga’s Lowveld. The Health Minister sent a team down to Nkomazi Local Municipality to check out complaints about foods being sold past the sell-by date. The merchants’ landlord is the Chair of the ANC in the district, and he did not take kindly to his tenants being investigated. So he intervened – against the intervention! We can safely assume that this is one filter that removes some police cases from ever reaching prosecution.
Second, police dockets go missing. This happens with embarrassing frequency. The underlying cause of this could be point #1 above – a small bribe to a police officer to “lose” a dossier. Or it could just be sloppiness, incompetence or laziness. In the middle of archiving a file, your cell phone rings. The call disturbs you and you lose track of what you were doing. The dossier goes missing in action…
On this note, cases are punted from one date to another, in court, sometimes twice or three times before they ever get to trial. This causes major inconvenience and runs up legal fees. It has the effect of slowing down the justice system, and justice delayed is justice denied. Just because the police have misplaced the docket, so the prosecutors can’t do their thing.
Third are the run-away biases. It’s a toss-up whether gender or affirmative action gets first prize. But if you open a case against a black lady, look out! Especially if you are a white man. The police take exception to this kind of case profile. Worse yet, many prosecutors are women and they instinctively take the side of the perceived underdog. Excuse me, that is a mere idiom and no reflection of my view of women. But in a country full of femicide, it is terribly hard to convince BOTH the police and the prosecutors that a woman should be charged and prosecuted. This causes many cases to be dropped.
This bias is led by the “Me too” movement. A woman charged with any crime needs only to say “He groped me” and the case is dismissed on the spot. She does not need any proof, certainly no photos, and not even a clear recollection of the date. Everything stops. Even though there may be solid evidence against her, including witnesses, photos, and an eminently prosecutable case. Such gender biases can and do get in the way.
As for racial biases, we have the reverse in South Africa of the USA; over there, one out of ten citizens is black. Denzel Washington’s latest movie is about a black lawyer trying to change the justice system because of the prejudices that African Americans face in it. Frankly, the reverse is true here. Black policemen and women prosecutors are irrationally hard on whites facing allegations. The one mitigating factor is that there are still more white lawyers than black attorneys within the justice system here, so the whites may not be victimized as much as blacks are in the USA. Think of the huge difference it would make over there if somehow black lawyers outnumbered white attorneys!
Fourth and last, the NPA is too often a player and a referee in the same game. In the era of State Capture, the NPA is one of the state institutions that is reputed to be 100 percent captured. Thank God that this never happened to the Judiciary. However, the strategy of Zuma’s Cabal was clear – first close the Scorpions, then go after the NPA. This would “transform” the justice system. As a result, morale in the NPA is abysmal. Prosecutors can hardly bear to look at themselves in the mirror. They are insensitive and would just rather not risk losing cases in front of those sizzling judges. So they just “withdraw” cases. They just go into “suspense”. No one is informed. The police seem to mainly occupy themselves with opening dockets and giving out traffic fines. An investigation is too unpleasant and risky in a country where not just citizens but police officers are getting killed regularly. Prosecutors make the whole justice system go numb. The result can be seen in the crime stats – only one of three cases opened by the SAPS is ever prosecuted.
Does Police Minister Bheki Cele realize that the prosecutors routinely sit down with the police in a town, to look at the dossiers on a case by case basis? The prosecutors basically have veto power. And if the same victim files more than one crime report at the local precinct, the police refuse to give out separate case numbers! They say “Oh, you have been here before, we can investigate all of it under one case number.” This is a kind of victimization. Imagine a woman getting raped more than once, to take it to reduction ad absurdum. They are rigging their statistics, by replying to her that all the incidents even on different dates by different men can be investigated by the same officer under one existing case number. One can see how this plays into the hands of the rich and powerful who are positioned to manipulate due process. But it is self-defeating because of the demoralizing effect it has on the whole justice system. People lose trust in law enforcement and turn to the mafia for help instead.
* Stephens is the executive director for the Desmond Tutu Centre for Leadership and writes in his personal capacity.
** The views expressed here are not necessarily those of Independent Media.