Judicial Disconnect – the function gap between investigating and prosecuting

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How long did it take Thuli Madonsela’s State of Capture report to get into gear? How long has it taken to lay criminal charges against ex-president Jacob Zuma? How long has it taken to get the Vrede Dairy project onto the front burner? Why has the report on the Mpumalanga Murders never been released? Why are questions being raised again only after Mama Winnie’s passing about what happened to 14-year old Stompie Seipei and two other boys?

We are all wondering why it takes so long. The phrase “justice delayed is justice denied” is being repeated time and again. But, the deeper question is, why does it take so long? Put another way, we can ask, what can be done to speed this up?

First of all, there is what is commonly called the Stalingrad strategy. Technically it is “filibustering”. It is all about slowing down due process, so the fox can shake off the hunters.  And don’t think that the ex-President or the Guptas did all this on their own. By the time of the Matthews Commission, state surveillance was already out of control. Then came a permissive period under the late Faith Radebe. The spooks got away with murder, quite literally. This arm of the state intentionally worked to obfuscate due process.

Second, there is patronage. This goes hand-in-hand with corruption.  The Guptas offering half a billion Rand to Mcebisi Jonas for the Finance Portfolio comes to mind (to replace Nene, in his first incarnation). This is sometimes called cronyism. Whatever you call it, the whole system is rigged to protect the people in power. It is not fair play, it is all about self-interest. Often couched in demagoguery.

Third, there is the poor quality of investigators. Like so many other careers, the ranks of the police are filled by people who are hired for all the wrong reasons. Not based on competency.

The truth is that Private Investigators are probably better at it than the police. Just like private schools have higher standards than government schools, and private clinics provide better healthcare than government hospitals. This should not surprise anyone or sound like an insult to the SAPS.

Fourth and last – but not least – is the distance between the investigators and the prosecutors.  Like all of the above, this was intentional.  You’ve heard of built-in obsolescence in industry?  Well this is built-in Slow-Play in the Rule of Law. This was done to slow down the pursuit of justice, just as surely as the Scorpions were closed in order to make more space for political interference in the Judiciary.  I am not being cynical about this. The Constitutional Court – when it finally got around to it – concluded that closing the Scorpions was unconstitutional. But by then they had gone extinct. We are still suffering today from the lack of a totally independent force that both investigates and prosecutes.

Fighting crime at commercial levels will not be effective until this “function gap” is resolved. Especially when the NPA can drag its feet at the President’s bidding.

I reported a serious crime at the local SAPS precinct in January 2017. In less than a week, it was “withdrawn” by the local prosecutors – without advising me or my attorney. After two months, I started prodding the police investigator, only to discover this.  In the year since then, this case has bounced back and forth between the SAPS and the NPA, all the way to the top.  Now they are offering me a Nolle Prosequi certificate so that I can choose to go to private prosecution. But they are ducking their duty for political reasons that are irrational in terms of the Law. This is what this “function gap” feels like. Afriforum has picked up several high profile cases at the point where the system bogs down, and tried to get the cases unstuck and moving again.

In other countries, success in fighting corruption is predicated on the relevant anti-corruption force having both powers – investigation and prosecution. This is the real “two centres of power” problem in South Africa. The “separation of powers” should keep the Judiciary and the Executive Branch at a safe distance.  It should not mean that police investigators are kept at a distance from prosecutors. This only leads to the syndrome of prosecutors telling the police-force how to do their job.

Then when you speak to the SAPS Complaints Desk about the NPA using a Stalingrad strategy and obfuscating police officers (many of who haven’t even completed matric) with red tape, all they say is that they can only discipline police women and men, not prosecutors. This “function gap” is what slows down the speed of Justice, above all.

In principle, all these distinct Law sections are under one Department of Justice. But DOJ administrators can’t fight crime. So we end up losing the fight against crime, and we are slowly turning into a Mafia State. This is because gangsters don’t worry about rules or boundaries – by nature – and they are all over the police. They infiltrate the ranks of the police, as we have seen of late – criminals out on parole being hired by the SAPS. The police are caught in a vice between gangs on one side and intransigent prosecutors on the other.

David Mabuza’s call for “unity” would be better directed towards the Ministry of Justice than to a political party that is falling apart right before our eyes. There are other political parties we can always turn to. But in society, if the police do not prevail, then gangsters and organized crime fill that space.

Chuck Stephens is the Executive Director for the Desmond Tutu Centre for Leadership and writes in his personal capacity