Dullah Omar has admitted the justice system is in crisis, but he’s also upbeat about resolving the problems, report Gaye Davis, Justin Pearce and Mungo Soggott
A crisis of confidence has hit the South African justice system with threats of unprecedented strike action in the prosecution service, glaring inconsistencies in sentencing and bail and major controversy over the premature release of criminals.
The most serious aspect of the crisis is the threatened collapse of the prosecution service which is being strangled by civil-service red tape — preventing the Justice Department from creating new posts and paying senior staff adequate salaries.
Senior prosecutors are resigning at an alarming rate. According to the Society of State Advocates, six deputy attorneys general and three senior state advocates have applied for severance packages in the Pretoria office alone.
In Cape Town, the attorney general’s office is set to lose three senior state advocates, and the Office for Serious Economic Offences another three, while in the Witwatersrand three senior public prosectors have submitted their resignations.
Discontent in the service has been fuelled by resentment at recent salary increases which have put magistrates way ahead of prosecutors, regardless of seniority.
The government was able to boost magistrates’ salaries because they are independent of the civil service. Prosecution staff up to the level of deputy attorney general are treated as civil servants and subject to the control of the Public Service Commission.
White senior prosecutors are taking generous retirement packages — those with 30 years’ experience, for example, can leave with over R1- million.
Confidence in the justice system is also being undermined by what are seen as glaring inconsistencies in sentencing policy and the granting of bail to potentially dangerous accused and convicted killers.
A striking example recently was the case of Gideon Niewoudt, the security branch officer convicted of the Motherwell bombing in which three policemen and an informer were killed. Niewoudt was sentenced to 20 years. By contrast the young men convicted of the Lusiki rape of British and New Zealand tourists — a horrendous crime, but one which involved no loss of life — got between 17 and 23 years.
Resentment at the Niewoudt case was compounded by the fact that the security branch officer was released on R50 000 bail pending appeal, despite the fact that he was a convicted murderer.
The Niewoudt case follows a string of instances where potentially dangerous criminals have been released on bail pending trial — on the grounds they are “innocent until proven guilty” — despite the threat they pose to the lives of victims and witnesses.
The perception that the state is being “soft” and less than even-handed in dealing with criminals also came into focus this week with the relase of Greg Blank, after serving less than two years of an eight-year sentence, and Abdul Bhamjee who served less than five years of a 14-year sentence.
Minister of Justice Dullah Omar conceded the existence of a crisis in the system this week. “We inherited a system in crisis and we are dealing with it,” he told the Mail & Guardian.
Omar was speaking hours after an urgent meeting on the subject with minister of safety and security Sydney Mafumadi, correctional services minister Sipo Mzimela, minister of defence Joe Modise and deputy Minister of Intelligence Joe Nhlanhla.
Predicting that the salary problems in the prosecution service would be dealt with “within a year or so”, Omar warned prosecutors that they would have to “take the consequences” if they went on strike.
He would ask cabinet to approve the delinking of state prosecutors from the public service which would free him to act on salary grievances. Salaries set by the Public Service Commission (PSC) were “too low”. minister of Public Administration Zola Swkeyiya was trying to address this through “rightsizing” the public service but “it takes time and we can’t wait”, Omar said. “Professionals are not being remunerated as such and this needs to be addressed.”
Omar said he was seriously concerned about the flight of senior skilled prosecutors. His path to redressing the situation was blocked by the constitutional court challenge to the new constitution by attorneys general who were opposed to the proposed national directorate of public prosecutions on grounds that it would interfere with their independence.
“Once the constititutional court challenge has been decided and I know where I stand, I will proceed with legislation and argue my case with the support of parliament,” Omar said
“Delinking is the way forward and by saying so [state prosecutors and advocates] will help me. I fully sympathise with their plight.”
He said he had tried to get approval for the move but it had been opposed: it had been easier to argue successfully for the delinking of magistrates and the judiciary on grounds of judicial independence, he said.
Omar is likely also to appeal to cabinet to make more money available for the criminal justice system. The PSC had approved 50 senior prosecutor posts but the treasury had refused the funds, he said.
But he was confident salary problems would be dealt with. Omar said cabinet this week approved a series of bills he’d brought, including one providing for a major crackdown on corruption within the justice system itself.
Instead of the commission President Nelson Mandela said he would appoint to investigate corruption — including that which took place under the National Party — it had been decided to legislate, to give the probe real teeth, Omar said.
Next to a bill that would streamline criminal procedure and make courts more efficient the Institution of Special Investigation Units and Special Tribunals bill was the most crucial of those approved, he said.
The tribunal’s first focus would be on rooting out corruption in the courts and police force.
Omar said he was transforming the court management system so that the country’s 540 magistrates’ courts were managed in clusters of 40 to 50 rather than from Pretoria. Chief and senior magistrates would form management teams responsible for staffing, training and ensuring better co-operation between the courts, communities and the police.
He conceded that newly appointed prosecutors lacked experience and said planning for a national training programme funded by the Canadian government was in its final stages. “I am trying to develop national solutions that would impact on every court in the country,” he said.
He rejected charges that affirmative action appointments were seeing people promoted beyond their capacity, resulting in inexperienced prosecutors appearing against seasoned lawyers and losing cases they should not.
“We have appointed a number of blacks but they are as competent and as incompetent as whites,” Omar said. “I do not think people have been promoted above their competence but bringing 11 departments together and addressing discrepancies does take its toll and has created a strain on the system as a whole.
“Delinking prosecutors and advocates is central to resolving the problem.”
He said ministers at Wednesday’s meeting discussed the role of national intelligence in cracking down on crime syndicates involved in drug trafficking, gun-running, car hijackings and money laundering.
Deputy minister of Intelligence Joe Nhlanhla had tabled the national crime prevention strategy at a meeting with his counterparts from Southern African Development Community countries with a view to building a common approach, Omar said.
Other new bills approved by cabinet included several allowing for greater international co-operation in tackling crime and making extradition easier. The Proceeds of Crime Bill would allow for property and other illicit gains to be confiscated.
Liaison between his ministry and those of safety and security and correctional services was tight, he said.
“The ministers are working very closely together, there’s a realisation we can’t pass the buck. We have all inherited problems and the financial constraints hit us all equally.”
It had been decided they would work on a joint budget for the next financial year, he said.
“The national crime strategy is not just a piece of paper,” Omar said. “We are putting in place measures which never existed before. “You don’t see many tangible results immediately but many things are happening at different levels.”
New legislation was part of a comprehensive assault against crime, he said.
“The priority is effective action against corruption within the criminal justice system itself, which is undermining the whole process.”