A System in Serious Crisis

Judge Frans Kgomo of the Johannesburg High Court put it under words last week when he acquitted Glen Agliotti on murder charges. Referring to the botched criminal investigation against Agliotti he said: “… if this state of affairs … is allowed …to persist, we should all be very afraid.” It would seem as though the integrity of South Africa’s criminal justice system is under serious threat.

And, this is not an isolated case. In the Western Cape High Court Fred van der Vyver is suing the minister of police for more than R40 million in damages for irregular prosecution after he was aquited in November 2007 on charges that he murdered his girlfriend Inge Lotz in March 2005.

In another indication to what extent the integrity of South African prosecuting authorities  has in recent times come under suspicion, British newspapers last week reported that the widower of murder tourist Anni Dewani believes that the South African police is framing him as they are under political pressure to arrest a foreigner in this high profile murder case.

This comes at a time that it is also reported that the police have decided to cast a veil of secrecy of their investigation in to the murder of Dewani just over two weeks ago while she was on honeymoon in Cape Town with her husband Shrien.

Ever since the controversies surrounding the prosecution and conviction of Shabir Shaik, former financial advisor to president Jacob Zuma on charges of bribery and corruption, reports on political interference in the administration and prosecuting procedures have been a regular occurrence in the media. This stretches over a wide spectrum of cases, from charges for speeding by ANC Youth League leader Julius Malema to alleged corruption surrounding the multi-billion rand arms procurement deal.

In a conversation earlier this year with Leadership Intelligence Bulletin, after the publication of a book dealing with some of the controversies surrounding the prosecution of his son, Louis van der Vyver said that they as a family were lucky (fortunate and blessed  that they were able to mobilize the resources to fight what amounted to the framing of Fred by the state. This included incurring horrendous cost in securing the assistance of top experts from abroad.

If they could not mobilize these resources, his son would have been in jail, he believes. He said that he believed that there were instances of people who are less fortunate and which he believes are innocent and presently in jail.

Dual onslaught

The dual onslaught on the integrity of the criminal justice system – lack of independence from political interference and manipulation of evidence to make it fit with pre-mature conclusions reached by investigative teams – seem to have combined almost perfectly in the Agliotti case.

Delivering his judgement, judge Kgomo said, among others: “It is clear … that the Directorate of Special Operations (DAO) – and its predecessor the Scorpions – wanted the accused so badly that it did not matter how evidence was procured to prosecute him.”

“There was an abuse ot the system by police. My considered view is that if this state of affairs … is allowed … to persist, we should all be very afraid,” said and added that the interference with witnesses pointed to the irregular action of the investigators and the investigating team.

About the supplementary affidavit by the state’s key witness, Clinton Nassif, Kgomo said that “the timing of the … affidavit points to a pre-determined, pre-meditated course of action to implicate the accused.

The judge compared the case to some scenes from the book and film, The Godfather and said among others the “Section 204 witnesses, a rendition of their evidence was like a scene from a Mafia film. It was tragic, emotionless, cold and comical … only that it was real and serious.”

The case was characterized by “hidden, sinister agendas with shady characters, ostensibly croocked business persons, and corrupt civil servants who dined with the devil,” he said.

Causes and the fix

It has become increasingly clear in recent times that an urgent and thorough strategy is needed to fix the criminal justice system.

Conversations with some experts in the field would seem to indicate that the Van der Vyver and Agliotti-cases are just the tip of the iceberg. The dice apparently remains badly loaded against the ordinary citizen when he or she happens to land in the visor of the prosecuting authorities.

The underlying causes of the state of affairs are probably complex and varied. Some elements of it can be trade to factors as the loss of expertise, skills and many years of combined experience were lost in the way in which and the pace at which transformation in the system was managed over the last decade and a half.

It could probably also be blamed on the blurring of the separation of the division and independence between the political and judicial spheres of government structures over the same period.

To this could be probably added the political and public pressure to improve on the appalling crime- and conviction statistics in the country.

Under the circumstances it is unlikely that it will be possible to repair the situation overnight or that there is a silver bullet available to do so. A long, hard slog of dedicated effort under sober and firm leadership is going to be needed to repair believe in the system.