An overwhelming fracas was unleashed between the SAPS and the NPA two weeks ago when a summons was served on the offices of the latter in connection with its deputy director of prosecutions, Nomgcobo Jiba. Blows were thrown between the two entities in an unprecedented public brawl more befitting street hooligans than the two top law enforcement institutions of our country. The implications are as complex as they are severe.
In the ensuing spectacle, legal terms like “issued”, “summons” ,“warrant” and “serve” were thrown around willy-nilly, with reference to allegations and insinuations made regarding flouting of normal procedures. All very confusing to normal folk, who do not and are not ordinarily expected to be au fait with the mysteries of criminal procedure law, an ignorance easily exploited by those in positions of authority who aim not to inform the public, but to misdirect in service of a broader and often sinister political agenda.
One should start firstly with what was said during the course of the altercation. On 26 March 2015 SAPS spokesperson Solomon Makgale told talk radio 702’s afternoon host Xolani Gwala that SAPS had not ‘issued’ any summons against Jiba and the police were in fact not looking for her. He went on to explain that the investigating officer dealing with investigations against Jiba was not consulted by the NPA on the fact that a summons was to be issued.
In saying this Makgale, at least by insinuation, attempted to make the public believe that the summons was on shaky legal ground as the police didn’t issue it and, secondly, their investigating officer played no part in the issuing thereof. The Director of Public Prosecutions, Nxasana, then went on air, telling the public that the NPA had issued the summons and gave it to police to serve on Jiba. (Jiba, at that stage, had gone missing in an apparent attempt to avoid being served). Nxasana also confirms the summons was served at her workplace as she couldn’t be found by police.
The laymen amongst us would be excused if by then they had not a clue as to what exactly a summons of this nature entailed, who was allowed to issue it, who was allowed to serve it, how it was supposed to be served and whether and when it was valid or not. The confusion was even further exacerbated by the fact that certain people started using the term ‘warrant’ in reference to what was in fact a summons.
To understand where a summons fits into the South African criminal justice system, one has to have a look at the Criminal Procedure Act, which sets out in meticulous detail every conceivable aspect of criminal procedure. One aspect of this act deals with ensuring the presence of an accused person in a court of law for the purposes of his/her prosecution on any alleged criminal act(s). This is where more often than not, terminology gets thrown around rather loosely by those reporting on and discussing ongoing cases.
There are three ways of ensuring the presence of an accused person in a court of law in pursuit of a criminal prosecution. These are: arrest without a warrant, arrest with a warrant and summons. Each of these concepts is different and has different requirements which are also set out in the CPA. Without going into the almost infinite detail pertaining to arrest with or without warrants, the point is that these methods are for circumstances where the State (either through the police or the NPA) believes that physical detention of a person is necessitated to ensure his/her presence at a court of law.
Conversely, Section 54 of the CPA also allows for ensuring such presence of an accused person in circumstances where authorities deem it unnecessary to physically detain the person. The latter is what is known as a summons.
This would usually be the case where a complaint/charge is opened at the police, an investigation is conducted and the suspect identified as a person who has a fixed job and address; and the likelihood of that person fleeing/evading prosecution is minimal or unlikely. The practical thinking behind this kind of option is that prosecutions may continue without necessarily placing more and undue pressure on places of detention already filled with awaiting trialists.
Whether to pursue an accused person’s prosecution through means of a summons is a discretion which entirely rests with the prosecuting authority. This is not and never has been the call of police to make. The prosecutor will have regard to any evidence contained in the relevant police docket in taking such a decision. In practice prosecutors mostly make that call in consultation with the relevant investigating officer in a particular case. The decision to issue summons and thus that there is enough evidence to make a prosecution stick is one which requires legal expertise by a qualified lawyer, which of course prosecutors are.
Such a summons is drafted by the prosecutor and then handed to the clerk of the magistrate’s court, which has jurisdiction in a particular matter, who then stamps and signs said summons to indicate its formal issuing under the authority of that court. The summons is in fact nothing more than a document drafted by the prosecutor and issued formally by authority of the court that a particular accused is notified to be present at that court on a certain date and time to face prosecution in relation to charges attached to the very same notice.
The issued summons is then served on the accused person by a police official. Normally it would be the investigating officer in the case but there is no law which prohibits any other police official from serving the summons on the accused. Service is affected by handing it to the accused person personally at his/her home or work address and, in cases where the accused can’t be located, then to any person at those places and who the police official has reason to believe lives or works there and is older than 16 years of age. The police official usually establishes the latter two inferences from questioning the person they find at the home or work address.
Having regard to the aforementioned, it thus becomes clear that the SAPS spokesperson either didn’t know the procedures surrounding the issuing of summons, or maliciously attempted to cast doubt on the legality of the summonsing process. The latter is to a great extent confirmed by the fact that on Monday 30 March 2015, the very same Makgale issues a statement denying that SAPS ever questioned the validity of the summons issued. The question is, of course, why in the first place even mention that SAPS didn’t issue a summons when he knew or ought to have known the police do not issue summonses at all.
Makgale’s second bone of contention, namely the non-consultation with the investigating officer prior to issuing of the summons, is equally dubious. Why even mention this when he knew or ought to have known that the prosecutor is under no obligation to consult with any police official in deciding whether to draft and issue a summons in a case? Or does Makgale seriously suggest that the prosecutor, a qualified lawyer, is less qualified to estimate the prospects of success in a criminal trial than a particular police official? Would it not be a sad day indeed when we turn police officials into quasi lawyers and cuff our prosecuting lawyers’ hands at behest of the legal opinions of police? At the very least Makgale’s insinuation is that the prosecutor in question had conducted himself in an unprofessional and less than diligent manner by taking a decision on inadequate evidence. Of course this insinuation also extends to the defence later mounted by SAPS that its Commissioner, Phiyega, phoned Nxasana out of concern about the timing of the summons jeopardising the ongoing investigation against Jiba. Are we to understand from this that Phiyega also regards her legal knowledge in prima facie evidence and prosecutorial prospects of success as superior to that of Nxasana and his team of qualified lawyers? Certainly, the police, with all their flaws, cannot be that arrogant and delusional. Of course, Phiyega’s total lack of legal knowledge is exposed by the reports that she insisted with Nxasana that the summons was invalid because it wasn’t served by the investigating officer.
The real reason for the initially misleading statements and Phiyega’s frantic calls to Nxasana (and indeed the latter’s astounding public rebuke of the Commissioner) is more likely more to do with political shenanigans than grave overestimation of legal acumen.
Note that earlier I stated that summonses are issued, usually, in consultation with the relevant investigating officer. So under which circumstances would the normal practice be discarded? The sad reality is that there are instances when a specific investigating officer is failing to do proper investigation work by being lax or plain incompetent or, more sinisterly, is delaying the finalisation of an investigation because he has some concealed or ulterior reason at play other than the interests of justice.
In such cases complainants start kicking up dust, and when a complainant becomes irritating enough, the prosecutors get very interested in such undue delays. In these instances the prosecution is perfectly entitled by law to obtain the docket from police or study readily available evidence – and make a call on whatever course of action needs to be taken, including, if it is thought prudent, issuing a summons. In the interests of fairness, though, it should be emphasised that according to reports by EWN, it appears that the investigating officer in this case had all along been one Col Boats Botha, who in fact was consulted, docket and all, by the prosecutor who then only drafted and had the summons issued.
The obfuscating part herein, and which SAPS does not tell the public, is that directly after the summons was served, Botha was apparently relieved from the case as investigator and the docket placed in the possession of one Maj Gen Taioe. SAPS made a brief reference to the fact that the NPA, elected to consult with Botha despite knowing that a new boss had taken over his unit. Of course this cleared the gap for SAPS (and Phiyega) to latch onto the initial (legally wrong) claim that the summons is invalid for not being served by the investigating officer and/or for failure to consult with the investigating officer. Sadly for SAPS it is wrong in its dicey legal standpoint on both scores.
But what is more disconcerting is the blatant attempt by SAPS to use the result of behind the scenes replacement of Botha to mislead the public and Nxasana (on account of Nxasana’s version of the Phiyega phone calls) about who the actual investigating officer is, and that this would somehow yield legally invalid summons. When SAPS thus said on 26 March 2015 that the investigating officer was not consulted by NPA, it was probably, factually speaking, correct, but rather underhandedly failing to reveal that the investigating officer at the time of the press release was not the investigator at the time of the summons being drafted, issued and served. If the version of Nxasana as to Phiyega’s phone calls to him is to be believed, then Phiyega herself replicated this attempted to mislead with Nxasana, while mistakenly thinking she had a valid legal footing to have the summons invalidated.
This has all the hallmarks of a hastily concocted game plan gone wrong. The question is what extraordinary influence or connections must Jiba (or any other accused for that matter have) to get the entire SAPS management involved in a quick replacement of an investigating officer with the specific purpose of creating an, albeit flawed, legal gap for invalidating an issued summons? Even to such an extent that the Commissioner would venture well outside her jurisdiction and confront the kingpin lawyer at the NPA on what is essentially a legal argument? The question is: how much clout must one actually have to get authorities right at the top level to dive into a half-assed rescue plan?
SAPS should rather be more concerned with explaining why this appears to be a case.
Equally poorly concocted are the claims of a premature summons which may jeopardise the ongoing Jiba investigation. The fact is that the evidence on the charges Jiba faces will all be traceable from merely perusing the court papers in which pronouncements and findings about her conduct were made. Those pronouncements stemmed from the very court papers in those cases. The ‘smoking gun’ is clear, obvious and easily accessible.
What possible further investigations could either the previous or the latest investigation officer seek to pursue? Certainly if a qualified lawyer employed by the NPA has seen the docket and called the merits, then it’s not for police to suddenly and inexplicably make vague claims of the case being jeopardised based on outstanding evidence? Again SAPS fails to explain to anyone what further issues in the docket might be outstanding.
Since when are the police so concerned about a docket on its way to prosecution that it wishes to delay the first appearance of an accused? Hundreds of cases, if not most, are in any event postponed after a first appearance of the accused in our courts – for any number of reasons, ranging from the accused having to secure legal representation right through to the very common reason of the state wanting to do further investigations. Yet SAPS seems, in this case at least, completely ignorant of this daily occurrence and well-established practice. Again, what kind of clout must Jiba have to have police act completely at odds with its own normal participation in the criminal justice system? What extraordinary influence clings to the name and reputation of Jiba that would see SAPS risk making a cringeworthy spectacle of itself in an attempt to save her from an appearance in court? It is perplexing to think that Jiba, who carries the title and qualifications of an advocate and holds public office in our justice system, is to be associated with what at least in part appears to be her stillborn attempt at flouting the law, misleading the public and evading the very justice system she is sworn to protect?
The result of the entire messy affair is that the public loses all trust in the integrity of the criminal justice system and its officials, in that the belief is established that officials (and therefore the entire system) are beholden to political manipulation and personal influence. Where clout trumps legalities and lies trump justice. A country where the ideals of prosecution without fear, favour or prejudice is nothing but a worthless concept. This is when the criminal justice system is warped into an instrument of injustice, undue favour and extreme prejudice in the hands of a powerful few. Is this what our country is about, or will we – you and I – guard against it? DM
Pikkie Greeff joined SANDF in 1993 as law officer in prosecution and later Defence counsel. He was admitted as advocate to High Court in 1997. He started at SA National Defence Union (SANDU) in 1999 as chief legal advisor, and was appointed as SANDU National Secretary in 2008.
"Take a chance, won't you? Knock down the fences which divide. Tear apart the walls that imprison you. Reach out. Freedom lies just on the other side." ~ Thurgood Marshall