NO TRUE FREEDOM WITHOUT JUSTICE REFLECTIONS ON FREEDOM DAY 27 APRIL 2010

Those concerned about the state of democracy in South Africa would do well to pay close attention to disturbing trends in the criminal justice system. The courts are the ultimate guardians of the freedoms Freedom Day celebrate, but they are not functioning optimally. They also dispense justice, which most crime victims are denied. While most blame lies with incompetent and corrupt police members prosecutorial services are not doing enough to remedy investigative deficiencies. We should be most alarmed about the militarisation of police ranks, especially given existing abuses of power by members of the service.  If we do not pay close attention, and raise our collective voices against these abuses, we may find ourselves back to where we were under apartheid.

Policing

The reversion to military rankings goes against the spirit (and wording) of the Constitution, and the rationalisation that it will help the fight against crime is a red herring. Indeed, one wonders whether the police take the Constitution seriously. More people die at their hands than ever, and some of those implicated carry apartheid era baggage. Torture and assault of suspects is common, and abuse of power by blue light bullies and bodyguards is common. Abusers are among those now addressed by titles usually associated with authoritarian and totalitarian regimes. By failing to respond to written requests for public information the police are also in breach of Section 32 of the Constitution.

There are many good police members who give of their best, often at great risk to their personal safety, and without due recognition. However, corruption and incompetence is rife, and many members have been promoted well beyond their levels of competence. All over the province people complain that police collude with criminals, either through acts of omission or commission, and engage in illegal business activities such as taxi and security company operations through fronts. If that is true, it is small wonder that mayhem continues in the taxi industry, and illegal security company operations go unpunished.

Guns disappear from police keeping, as do dockets, and cars driven by police members are, not infrequently, involved in accidents leading to injury and death. While people who are widely alleged to be criminals remain free, and police fail to follow up on information which could prevent crimes from happening. Innocent people are often arrested, and may even be refused bail despite there being no evidence against them. Poor rural people, who do not know their rights, and lack access to lawyers, are especially vulnerable to this type of abuse.

The blame for this state of affairs rests with management and the various bodies designed to hold police accountable for their actions – civil oversight bodies, internal police investigations and the Independent Complaints Directorate. Despite the existence of all these structures no one is policing the police properly. Internally, police regularly investigate their colleagues who, unsurprisingly, are never brought to book. The Independent Complaints Directorate is desperately under-resourced and under-skilled, seemingly overwhelmed by the sheer extent of complaints against the police (which are probably the tip of the iceberg).  In terms of what they cost taxpayers, and what they achieve, civilian oversight bodies (provincial as well as national), as presently constituted, appear a waste of money. It would be better to put more resources into the ICD.

In far too many cases, including those involving deaths at the hands of the police, there is a failure to make maximum use of forensic evidence. Forensic services in the province are in a state of crisis – teetering on the brink of collapse in places – with few properly trained forensic staff, and a dearth of proper equipment. For this, the Department of Health must bear responsibility.

Courts

There is a failure on the part of many prosecutors, especially in rural and township areas, to intervene in shoddy investigative work. Either prosecution does not take place, or the quality of the evidence is such that there is no conviction. Much of the fault lies with prosecutors themselves.  In a recent case, police members who had been involved in a shooting (for no apparent reason)in which an innocent car passenger died were acquitted because no one had bothered to access crucial forensic evidence and call a ballistic expert.

There is no consistency in the granting of bail. Recently the national police commissioner complained the courts for easy bail. However, it is often police who do not oppose bail, as in the current case of taxi operators and their security guards who are charged with murder. Bail was not opposed despite their having apparently been breaking the law with impunity before they attack for which they are now charged.

Despite being asked, local police had failed to protect the victims of this crime. Are they now going to protect the witnesses?  However, in another matter, a man accused of stealing a car, who had been assaulted when arrested, was refused bail, despite a lack of evidence..

There are apparently well founded allegations of complicity, in some courts, between prosecutors, investigators and certain lawyers in not opposing bail in return for a kick back.  In a recent case, a local magistrate refused to sign a warrant of arrest for a man who already has a criminal conviction and is now accused of serious crimes (including kidnapping). The warrant had to be taken elsewhere for signature. Now locals are asking what hope there is that justice will be done when the case goes to court.

There are also huge discrepancies in sentencing. Mr Sizwe Shezi was sentenced to 18 months’ imprisonment for jumping a red traffic light. A kwaMashu detective was involved in a hit and run accident in 2004, and was only brought to justice because of the perseverance of a family member assisted by Monitor. He was convicted of culpable homicide in 2009 and, despite having killed a woman and absconded from the scene he received a slap on the wrist in the way of a fine. Other officers of the law get away with such crimes altogether. Where, compared to the sentence meted out to Mr Shezi, is the justice?

Problems are not limited to magistrates’ courts, but are also found with appointments to High Courts and judgments meted out there.