Conference on the decline of the criminal justice system: An alternative to the sinking ship of justice

18 October 2021  

AfriForum’s Private Prosecution Unit today hosted a conference on the decline of the criminal justice system at the AfriForum Teater. Adv. Gerrie Nel, Prof. Koos Malan, and Dr Llewelyn Curlewis were speakers at the conference. Adv. Nel highlighted concrete examples that indicate the decline of the criminal justice system as well as the role of the Private Prosecution Unit in rectifying this, Dr Curlewis discussed the decline of the prison system, as well as the deteriorating independence of the judiciary and Prof. Malan discussed solutions from a constitutional perspective.

Adv. Nel came to the conclusion that the ship of justice as it currently exists is unsalvageable. “However, AfriForum has created a unique and exciting capability to privately prosecute. We use the skillset in our office to force the National Prosecuting Authority (NPA) and the SAPS to do their duty and we have had amazing success in various matters. Therefore, we would like to present solutions on how to rescue the sunken ship of justice by developing the law to allow people to, in the future, in all matters have the option of electing to privately prosecute.”

Adv. Nel discussed cases from when he was still a prosecutor at the National Prosecuting Authority (NPA) that is still dragging, such as the case of Shaun Abrahams withdrawing the criminal matter against Ngcobo Jiba, as well as cases that the Private Prosecution Unit deals with daily. Adv. Nel discussed various examples of the Unit’s letters to the NPA and the SAPS and their nonsensical answers thereto. He pointed to the fact that the Head of the NPA, Adv. Shamila Batohi is prosecuting Ace Magashule, but fails to prosecute political figures such as Fikile Mbalula (against whom AfriForum laid criminal charges of corruption), and EFF-leader Julius Malema (on the On Point-matter). “These are merely two of the politically driven decisions that the NPA has taken regarding prosecution. This points to the fact that the NPA are either dancing to their masters’ voice or don’t have the capacity or knowledge to prosecute cases of corruption.”

Adv. Nel also announced a case in which the Unit has been involved since 2019, because the NPA has failed to prosecute due to apparent political reasons. André Fourie was falsely accused of making a racist comment. He lost his job as a result thereof and consequently laid a complaint against the person who made the accusation. In this matter the NPA indicated that it is not in the interest of justice to issue a nolle prosequi certificate.

“The NPA does however not have the discretion to refuse to issue such a certificate. According to the Criminal Justic Act they are obligated to do so. The Private Prosecution Unit must however regularly approach the courts with mandamus applications simply to force the NPA to do their duty. In this case, as in all other cases in which we apply for a nolle prosequi certificate, the SAPS also initially indicated that the docket has been lost. My inference is that their refusal to prosecute in this matter is irrational and politically motivated. The NPA also realizes that they will look terrible if we successfully prosecute this matter. We are currently in the process of filing court documents to, once again, force the NPA to do their duty.”

According to Dr Curlewis the South African legal system is unfortunately no longer the exemplars of the rule of law that we once aspired to and it is the duty of citizens to rectify this. “As citizens we are exposed to a frank recognition of a deep-seated resistance to effective action by government against the cancer on development known as corruption. The combination of a weak legal system and corruption is not only economically debilitating but is a death blow to the political health of both our new mature democracy and maybe even our centuries old justice system.

A reliable justice system and a strong society are two sides of the same coin. Public conscience should revolt against legislation and corrupt politicians, greet it with derision and the most intense public hostility. Those responsible should pay dearly at the next election. Furthermore, in my opinion, things appear to have fallen apart in the criminal court rooms. Criminal trials have become a farce, it has very little to do with arriving at the truth and dispensing justice, but more to play a game of chess-politics. It obviously brings the entire legal system into disrepute.”

Prof. Koos Malan presented solutions to the current problems that we are facing with regard to the collapsing criminal justice system. “It is a fact that the police are understaffed, undertrained and under-committed to their duty to fight crime. They grapple with high-levels of corruption in their top-ranks, moreover its administration is in a very bad state and they lack leadership in their highest ranks. In the face of the failing state the police are simply absent – consider the construction mafia, mining mafia and the recent plundering in KwaZulu-Natal.

In many cases the police were simply bystanders and onlookers. South Africa has per capita the fourth largest private security industry in the world as a result of the absence of the police. Effective prosecutions have descended into the happy exception. The question that we have to ask is whether things are going to change for the better. Unless there is active and resourceful intervention, things will not change.

The police, SANDF and the NPA have lost the skills to such an extent that it cannot be remedied. Looking to the State for a solution is looking in the wrong direction – no help will come from there. The life of the state is measured by whether it can provide safety and security to its citizens. The less it does so, the more it retreats as a legitimate State, the more it forfeits its claim to obedience of the citizenry and the more the taxes it claims becomes blackmail of the citizenry.”

Prof. Malan also stated that what we perceive to be the Constitution, from a practical point of view, has already lapsed. “What should be the responsible response of the citizenry to this state of affairs? Firstly, we should understand that this is a gravely dangerous situation, because it is one in which a state of unbridled law-breaking looms. When the laws of the state falters, a new law, a default law, could emerge.

It is therefore our duty as citizens to ensure that this default law is put in place. This is the law where communities by consent create and enforce their own law. At the root of this law is controlled boundaries combined with the suppression of unrestrained freedom of movement. Communities should set boundaries and police them to ensure that criminals cannot move freely therein. Instances of default law is already with us, consider community watches, gated communities and so forth.”

- A recording of the conference is available on AfriForum’s YouTube channel

Issued by Chante Kelder, Media Relations Officer, AfriForum