Communities are taking justice into their own hands as attorneys-general admit they cannot prosecute major cases. David Beresford and Rehana Rossouw report
SOUTH AFRICANS expect instant justice — if a spate of burnings, stonings, shootings, whippings and vicious assaults perpetrated by communities against alleged criminals is anything to go by.
And while vigilantes and communities are exacting their own rough justice, the agencies tasked with bringing criminals to book — a police service still grappling with the demands of change and the offices of the attorneys-general — are in a state of shambles.
One by one South Africa’s grim-faced attorneys-general appeared before the Parliamentary Justice Portfolio Committee this week to recount the woes of the country’s prosecutors.
The most devastating critique was offered by the most highly respected of the country’s nine AG’s, the Transvaal’s Jan d’Oliveira, who disclosed that he is so short of resources that he is unable to prosecute ”the first real Third Force case”.
Although he did not identify the accused in the case, they are believed to include at least two police generals. ”I have simply no-one to allocate to the trial,” said the AG. ”The case is ready for preparation, indictment and arrests, yet we are unable to proceed.”
Outlining the crisis in the Transvaal prosecuting services he disclosed that:
* Of the 73 professional posts in his own department 12 percent are vacant, including three out of 11 positions of deputy attorney-general.
* Of the 21 registered posts of senior public prosecutor only six are ”appropriately filled”.
* The turnover of prosecutors is so high in his jurisdiction that in some trials they have had to be replaced four times.
* Of the two key posts of chief administration clerks one is vacant and the other is facing child molestation
* The post of chief typist has gone begging since
Predicting a further haemorrhaging of staff — in the face of a huge escalation in their workload caused by factors including Third Force investigations, constitutional cases and the emergence of criminal syndicates — he demanded to know how he could keep them with the salaries they were being paid.
Contrasting the earnings of state lawyers and those in private practice, he recounted how:
* A ”young”, former deputy attorney-general had resigned in the middle of a prosecution and was now contracted to continue in the same case. Occupying the same office ”he is paid R480 000 a year, about R340 000 more than his erstwhile colleagues, some of whom are silks” said D’Oliveira. ”He in fact receives twice as much as I do as Attorney General.”
* A senior state advocate, earning R107 019 a year, was called to lead evidence before a commission of inquiry. The State appointed a junior counsel from the Bar at R90 000 a month.
* A private attorney in the Vermaas case — instructed by the Legal Aid Board in terms of a constitutional court decision on legal representation — was expected to be paid in the region of R1,3 million by the government. ”It is estimated that were the R1,3 million to be divided among all the deputies (attorneys general) in the country each would be receiving a 25 percent increase in salary”.
Figures provided by Safety and Security Minister Sydney Mufamadi last month in Parliament underline the extent to which the crisis of the justice system and police — and the relationship between these state agencies and communities — have contributed to a shift from court justice to street justice: 50 people dead and 62 injured as a result of action by people’s courts since January 1 last year.
A spate of incidents since then appears to confirm an escalating trend.
Azhar Cachalia, advisor to Mufamadi, this week pinned some of the blame on an historical lack of trust between police and communities. ”There is no question that the relationships the police forces of the past had with communities was based on principles of might and power, rather than on the principles of legitimate and accepted authority. This has warped the nature of our conceptions of justice …
”Communities have never felt that there was a social institution mandated to provide succour in times of crisis, and that the processes that made up that institution were appropriate.”
Cachalia said communities which summoned the police often had a desire for some form of rough justice to be provided by the police — and were disappointed by the nature of the criminal justice system.
Where communities expected instant justice without due process or the rights enshrined in the Bill of Rights, the non-delivery of their expectations was partly an effect of the way the justice system worked.
”Unfortunately, that disappointment can often become manifested in the sorts of incidents described by the Mail & Guardian. Clearly, that is unacceptable,” Cachalia said.
”Ultimately, the transformation of our conceptions of what is a just justice system is part of the process of nation-building, and cannot be divorced from the other processes intended to re-invent South African society.”
Cachalia said that while stamping out rough justice was ultimately a question of education, it remained illegal. ”The police, when aware of it, are duty bound to act.”
Recent incidents of rough justice include:
* Since mid-June at least 15 people have been convicted and sentenced to death by people’s courts in the northern KwaZulu-Natal township of Esikhawini. At least six of these allegedly belonged to the same gang, and were burned to death after being ”convicted” of a spate of rapes and robberies. Police say each section of the township has formed a committee to carry out the sentencing by fire, dubbed ”Operation Nandos”.
* A woman was ordered to throw the first stone at her alleged rapist before a crowd stoned him to death in Tembisa last week.
* An alleged member of the KGB gang was stoned to death and then necklaced in Dobsonville, Soweto two weeks ago after he and another youth were caught hijacking a car.
* More than 30 women assaulted an alleged rapist in Guguletu, Cape Town, beating him up badly before turning him over to the police.
* Shots were fired and two houses burned down by pupils in Alexandra township who organised a ”march against crime” to the houses of known criminals.
* A group of people attending a mass meeting in Thembisa on the East Rand last month stabbed to death a member of the Magents gang, which has allegedly committed crimes ranging from murder to car hijacking and rape in the township.