The outstanding and comprehensive coverage of the Madlanga Commission by Daily Maverick has highlighted a point which, arguably, was known before the advent of the Madlanga Commission, but not in such graphic technicolour – namely that South Africa faces a complete implosion of the central features of the criminal justice system, being the National Prosecuting Authority (NPA) and the South African Police Service.
Agreed, that steps have been taken to staunch the collapse of the NPA by the appointment of advocate Andy Mothibi as the National Director of the NPA.
But, notwithstanding his credentials and ability, he faces an uphill task. In the first place, he is probably the first decent appointment as the head of the National Prosecuting Authority since advocate Vusi Pikoli, who was suspended from his duties by Thabo Mbeki and then subsequently fired by Mbeki’s successor, Kgalema Motlanthe.
As such, he faces the headwind of sustained political interference with his post, which has taken place for almost 20 years. In the second place, the question arises as to who he will be able to trust.
Take, for example, the case of Andrea Johnson. She was heralded as being a new broom when she was appointed as head of the Investigating Directorate Against Corruption (Idac).
The damning testimony that flowed from the Madlanga Commission creates an overwhelming feeling of pessimism as to how to reform an institution where even those who were held up as crime fighters allegedly engaged in nefarious activity and became the subject matter of egregiously serious accusations.
SAPS corruption
The situation is even worse insofar as the SAPS is concerned. Again, it must be agreed that there are significant numbers of honest police officers who do their primary task of curbing crime and providing a safe environment for South African citizens. But the consistent stream of testimony that has flowed from the Madlanga Commission raises the obvious question as to the depth and width of the corruption of the SAPS.
Who among the most senior officers can be trusted to run a police force that in any shape or form can fulfil the constitutional obligations of the SAPS?
It might be suggested that the imperative is to appoint someone from outside the police force with an impeccable record of integrity, competence and accountability. But that is easier said than done.
Recall many years ago, when the chief executive of South African Breweries, Meyer Kahn, was persuaded by President Nelson Mandela to leave SAB temporarily in 1997 to become the chief executive of the SAPS, where he served for some two-and-a-half years.
He himself described the SAPS as he found it as “undertrained, underequipped and under-resourced”. In fact, he estimated absenteeism was about 30%.
Thus, seeking to reform an organisation over which he did not have operational control and where he was dependent on a range of police officers who had little, if any, reason to assist him in the reformation of the SAPS, as President Mandela had hoped, proved to be an insurmountable undertaking. It represented a case study of the difficulty of introducing an outside person to take charge of a complex organisation such as the SAPS.
The SARS rescue
It is true that there is recent precedent of a leadership appointment which changed the trajectory of an organisation which had been subject to sustained State Capture, namely the South African Revenue Service.
The appointment of Edward Kieswetter as SARS Commissioner had the significant advantage that, some years earlier, he had been the deputy commissioner of the revenue service under a man who had totally changed the trajectory of SARS when he had been commissioner, namely, Pravin Gordhan.
Kieswetter came to the job with significant organisational experience, great personal skill and knowledge of the organisation which he had learnt from the inside. In addition, while he was extremely successful in ridding the organisation of a range of Tom Moyane lackeys, it is probably true that few, if any, of them held the significant vested interests that police officers of the most senior ranks who have been engaged in sustained corruption and illegality for decades have. They have absolutely no incentive to do anything other than to undermine an honest incoming police commissioner.
If we are lucky to find that some of the police who have been subjected to allegations of nefarious activity are held by the Madlanga Commission to be innocent and therefore suitably equipped for higher office, we can then only hope for some progress.
Serious threat to democracy
The present situation constitutes the most serious threat to the continuation of the rule of law and constitutional democracy that this country has faced, arguably since the advent of democracy and most certainly since the demise of the Zuma State Capture era. No point talking about constitutional futures until this corrosion has been repaired.
Simply put, without a range of innovative appointments at the highest level of the SAPS who can be trusted by the public to serve the public interest, the position will remain parlous, notwithstanding the nature of government in the near future.
That is of course not the only problem with the criminal justice system. As Stephen Grootes, focusing upon the criminal justice system, reflected in Daily Maverick upon the endless delays and comments: “People are literally dying while waiting for justice.” He writes that this is because “the court system is overburdened with various applications, applications for delays and endless problems.”
In our determination to ensure that the constitutional protections of section 35 of the Constitution, including the rights of an arrested person, the rights of a detained person and the rights of an accused should be protected to the utmost extent given the manner in which the way the criminal justice system was perverted by the apartheid regime, we arrive at the core problem: the balance between crime control and due process has not adequately been achieved.
Stalingrad tactic
Delays in ensuring that the accused are transported on time to the courts so that trials can commence on time, so that a full court day can take place, are notorious. There are the countless challenges to procedure and the widespread use of the so-called Stalingrad tactic, which can ensure that, properly managed, a criminal trial can continue for years.
I have been struck when examining judicial training in other countries by how little attention is given to the running of the criminal trial in South Africa and the provision of an adequate education of judicial officers to ensure both fairness and efficiency in the conducting of the trial.
And then leave to appeal is granted so readily that, without much effort, an appeal on any particular point can somehow percolate from the high court to the Supreme Court of Appeal to the Constitutional Court and back again, the result being that easily more than a year has been spent before the trial can proceed.
Jacob Zuma’s defence relating to the 1999 multibillion-rand Arms Deal has exploited endless interlocutory applications. It has ensured that appeals for more than 20 years have taken place since Zuma was first formally charged with corruption in June 2005. This has become the poster child for a range of accused parties to exploit similar tactics to ensure inevitably long postponements, and that justice is never reached on an acceptable basis.
The judiciary needs to have a long and hard think on how to distinguish between self-serving applications designed only to postpone and ones which have even a scintilla of merit.
The fact that the Constitutional Court entertained Zuma’s rescission of judgment application of 2021 was in and of itself an ill-advised legal concession, notwithstanding that the court was understandably careful in dealing with a skilled litigant like the ex-president and that it ultimately dismissed the application.
Thirty years into constitutional democracy, the entire criminal justice system, the very underpinning of a legal system, is in serious crisis. It can only be hoped that the Madlanga Commission will make some serious, long-lasting recommendations which will be implemented to address the system.
Absent significant reform, the question arises as to whether we will have a vibrant constitutional democracy in 30 years. DM
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