High noon for SA’s criminal justice system

The almost daily revelations that emerge from the Madlanga Commission of Inquiry about the actions of senior figures in the South African Police Service (SAPS), including more recently certain very senior individuals within the National Prosecuting Authority (NPA), are cause for serious concern.

The fact of the matter is that it appears that certain senior figures in the police service, the NPA and in government may be severely compromised in their ability to continue performing their roles and functions.

Senior figures who have already been suspended or sought to take a voluntary leave of absence as a consequence of evidence led at the inquiry, include the Minister of Police Senzo Mchunu, who was placed on leave of absence; Lieutenant General Shadrack Sibiya, the Deputy National Commissioner, who was initially placed on special leave and subsequently suspended; General Fannie Masemola, the National Commissioner of Police, who was placed on precautionary suspension; and Julius Mkhwanazi, the Deputy Chief of the Ekurhuleni Metropolitan Police Department, who was suspended.

Shamila Batohi

Apart from the very senior individuals associated with the police service who have stepped aside in the wake of testimony that has arisen from the inquiry, we also recently witnessed the extraordinary scenario where the previous head of the NPA, Shamila Batohi, abruptly decided not to continue giving evidence at a separate parallel inquiry (the Nkabinde Inquiry) into the suspension of the head of the South Gauteng Director of Public Prosecutions (Andrew Chauke).

She decided not to return to the inquiry for, among other reasons, the refusal to grant her legal representation at the inquiry, and instead sought to make written submissions to the inquiry in the place of her oral submissions, which was rejected by the inquiry.

In fairness to Batohi, it is difficult to determine as an outsider to the inquiry proceedings whether she had been treated in an even-handed fashion and whether the manner in which the inquiry had been conducted ensured fairness and equivalent treatment for all participants. However, the bottom line is that the Nkabinde panel has cleared Chauke of all of the allegations levelled against him and thereby rejected Batohi’s reasons for suspending him.

Andrea Johnson

The optics of all of this are less than ideal from a public perception perspective. The negative public perceptions associated with former and current senior leadership of the NPA has been compounded by the recent appearance of Andrea Johnson (the head of the Investigating Directorate Against Corruption) before the Madlanga commission.

It would be an understatement to say that her testimony has not gone well. She also, it would appear from media reports, declined to respond to certain specific questions in relation to allegations that she disclosed a criminal docket to Major General Feroz Khan in a matter in which he was under investigation, and has invoked her rights against self-incrimination in this regard.

In light of all of these recent developments, it is very difficult to continue ascribing high levels of confidence in either institution (the police service or the NPA) to effectively deliver on their mandate to investigate and prosecute criminal activities, including organised crime.

Caretaker roles

In the interim, in the middle of this crisis in the criminal justice system, the president has appointed two individuals in “caretaker” roles.

Andy Mothibi has been appointed as the head of the NPA, a position he can currently only occupy for a maximum period of two years, and Professor Firoz Cachalia has been appointed as the acting Minister of Police.

The situation cries out for strong, permanent appointees to address the very real issues that bedevil the criminal justice system. However, since the president himself is under scrutiny for having hundreds of thousands of dollars stuffed in his couch, and the best he could offer in recent high court proceedings aimed at avoiding an impeachment process was to declare that the process would be “humiliating”, it is little wonder that he has not acted with greater decisiveness.

The South African public deserves far better. Every South African pays tax in one form or another and is entitled to a criminal justice system that is effective, efficient and delivers results. For many years now, certain individuals who have been appointed to senior positions in law enforcement are not suitable to occupy those offices.

The president (and his predecessors) must ultimately take responsibility for these appointments, but opposition political parties and indeed the broader public must also assume responsibility for allowing this unacceptable scenario to continue.

Meaningful solutions

It may be fair in response to this article to retort that it’s high on outrage, but very limited in proposing meaningful solutions to the current issues imperilling our criminal justice system.

First, on the solution front, hopefully at the conclusion of the Madlanga Commission of Inquiry, it makes strong recommendations for the reform of the criminal justice system, and government actually takes steps to implement the recommendations.

Second, influential people like David Lewis, who have been intimately involved in projects designed to review the criminal justice system and make recommendations, have made very practical suggestions, including that the entire top brass of SAPS should be made to reapply for their jobs on the basis that this would weed out those who are not performing and replace them with those who can bring about meaningful change to the police services.

Third, the former deputy director of the NPA Anton du Plessis (who now heads Business Against Crime) has suggested reforms including the removal of compromised officials and the appointment of competent people in permanent leadership positions; rapidly implementing legislative reforms, particularly to the NPA Act and South African Police Service Act which include a clear delineation of functions, mandates and reporting; and significantly strengthening whistleblower and witness protection; while investing in digital evidence capabilities to reduce the burden placed on whistleblowers and witnesses.

Finally, a parting wish that we bring the same fervour to fixing our criminal justice system to that which we give to our beloved Springboks as we urge them on to greater heights.

The public needs to get behind the efforts to reform the criminal justice system and to hold politicians to account, failing which we will sink deeper into the mire with little hope of any positive outcomes. DM