PISTORIUS, DEWANI AND DOUBLE STANDARDS IN SOUTH AFRICAN JUSTICE

Overseas readers and viewers following the Oscar Pistorius trial are probably impressed by the high standards of South African court proceedings (even if the revelations about police bungling, incompetence and downright dishonesty shocked them). This case, like that of alleged wife killer Shrien Dewani, shows only one side of the coin where the vast majority of victims of serious crime cry out for the justice denied them because of shoddy investigative (including forensic) work, poor prosecution versus good legal defence, and the intimidation of witnesses (especially if strict control is not exercised over the granting of bai)l. At the same time, the constitutional rights of persons accused of crimes, and those who have been convicted, are constantly violated. People are frequently arrested, and may be released without being charged or, or may be denied bail only to have charges subsequently withdrawn. During their incarceration they may suffer abuse and torture. Unlike Dewani, who has been assured that he will be held in a ‘secure unit’, the majority of prisoners risk suffering sexual violence, or even death, in communal cells. The Pistorius trial is taking place a year after his lover was killed but far too many cases drag on for years. with continuing postponements of court cases. Whatever the outcome of the Pistorius and Dewani trials the families of victims will at least achieve a measure of closure. That closure is seldom available when the police are the perpetrators, or when the victims lack public visibility because they live in rural areas and/or are poor.

Continuing police abuse
In 1992 the then apartheid police minister was castigated because 114 people had died in police custody. According to latest IPID report, over double that number – 275 – died in custody during the 2012/13 year (431 people died in police action). Why has this minister not been censured? Media reports of extreme police brutality are probably the tip of the iceberg. KZN Monitor is currently following up a case in the south Durban region in which four victims were arrested and were allegedly abused.. One man died. Those who survived were released without being charged.

Without constant follow up by family and/or human rights defenders , feedback to families of people killed by the police is usually tardy or non-existent. The family of Nqobile Nzuza who was shot dead in Cato Crest six months ago have reportedly heard nothing from the investigator – despite the availability of witnesses, ballistics evidence, a private autopsy, and (presumably) police records regarding the identity of the police members deployed to the area.

However, no matter how much trouble victims, and those who intervene on their behalf, take in their quest for justice, they are often left wondering why they had even bothered in the first place. In
2012 KZNMonitor reported abuses by the TRT (Tactical Response Team) of dozens of victims in the Creighton/Himeville/Umzimkhulu region. One of those who did not rest in his quest for justice for both himself and the other victims was Thabiso Zulu. He appears to have suffered abuse because he challenged this illegal police conduct. As a consequence of severe threat and intimidation to himself and his family he went into hiding, which impacted seriously on his familial and financial circumstances. His case was the only one taken over by IPID but, by then, crucial evidence in the form of CCTV footage had not been retrieved, and had been destroyed. Nor did the investigator take a statement from a witness who had been threatened. There were constant delays in holding identity (ID) parades but eventually alleged perpetrators were identified, and one was charged. When the case finally came to trial two years later witnesses who had identified the policeman were – given the time lapse -unable to confirm that he was the same man they had identified. Nor could they describe exactly what his role had been – which is hardly surprising, since Zulu had been attacked by a group of police, who kicked, and hit with the butt of a gun and open fists by a group of police.. The court accepted that Zulu had been abused but was unable to confirm the identity of the specific police member. Recommendations by IPID about disciplinary action were ignored by the police. Insofar as the other dozens of cases are concerned, police management failed to co-operate in the holding of ID parades so the matters never went to court. No action was taken against them.

Rural areas
The Nombika family, who fled their rural home near Highflats in August 2013 following abuse from community ‘law enforcers’, and threats from the local traditional leader, has not been able to return home. The family has split up with children staying with relatives in order to attend school elsewhere. After intervention by the SAPS Cluster office, Mr Nombika opened a case against those who had assaulted him. However, the case has been withdrawn because some of the witnesses could apparently not be traced. Despite the hardship he and his family continue to suffer, Mr Nombika fears to return home because, before he himself was abused, his son was murdered and the perpetrators have not been brought to book. No action has been taken against the prominent traditional leader who ordered the Nombika family from the area, nor has there been any response from the relevant provincial department to the complaint about the chief. This appears yet another case in which errant leaders are treated with kid gloves by the government. An independent observer at the community meeting called by the SAPS cluster office gained the impression that the police were trying to protect the image of the chief.

In some areas cases of abuse of women and children may be reported to the local traditional leadership, and no further action is necessarily taken. Leaders would benefit from training in referral and follow up of such cases. Some chiefs are alleged perpetrators of such crimes by engaging in the practice of ukuthwala (abduction of young women). Despite the traditional courts bill having been withdrawn by parliament it seems that the government may well bow to pressure and resurrect it after the elections. Traditional leaders should only have ceremonial powers , as is the case in virtually all other African countries. Any moves by the government to give these leaders more powers than they already have would raise questions about its commitment to democracy – as opposed to feudalism. The devolution of political power to chiefs subverts democracy.

How can the majority of South African’s have confidence in the criminal justice system, given such glaring discrimination in the way that investigations and court proceedings are handled?