Law and order: Aspirant prosecutor Tumisho Maleka, who is aiming to become a Constitutional Court justice. (Alet Pretorius)
The hardest part of being a new prosecutor is deciding whether to oppose bail, says trainee prosecutor Tumisho Maleka.
As Maleka works through his roll in Court B at the Pretoria North magistrate’s court, the difference between those accused who are out on bail and those in custody is painfully apparent.
When Maleka calls the name of his first accused in custody, the doors from the holding cells clang open and a pungent smell immediately fills the courtroom. It is the smell of bodies — too many of them, kept for too long, in too small a space — and Jeyes Fluid.
The man who comes up the stairs from the holding cells below moves slowly, with stiff deliberation. He looks as if every part of his body is sore; every step is an effort. The arm of his jacket is torn from cuff to shoulder. It is unclear why he was refused bail — the charge is not read out in court. His case is postponed, again, and he shuffles back down to the cells.
It’s hard, Maleka says, because incarceration is a massive incursion into someone’s freedom — which is guaranteed by the Constitution. An accused person is also presumed innocent. To keep them incarcerated — throughout the numerous postponements that are a regular feature of every criminal prosecution — is “a prejudice” to them.
Although it is ultimately the magistrate’s decision whether to grant bail, there is a prosecutorial discretion on whether to oppose it. The paramount question is whether it is in the interests of justice to keep the accused in custody, he says.
Maleka has been a prosecutor for less than a year but has been running his own court roll for some months now. He is an “aspirant prosecutor” at the National Prosecuting Authority (NPA) — part of the aspirant prosecutors programme that trains law graduates for a career in prosecution.
In 2015, the programme was put on hold because of budgetary constraints. For three years, there were no new prosecutors trained or hired at all.
In the NPA’s latest annual report, the staff vacancy rate was 21%, with 1142 vacant posts of a total 5550. This week the NPA told Parliament that, as of December, there were now 1351 posts vacant.
Commentators have said that years of continuous underfunding at the NPA have taken their toll. Those people clamouring for “state capturers” to be put in orange overalls did not see that the real challenge facing the NPA “was not only to ensure that high profile crooks ended up in prison”.
“It was much greater than that and involved the difficult, long-term task of rebuilding a national institution to bring justice to the entire country,” Gareth Newham from the Institute for Security Studies told News24 in January.
Last year, instead of recruiting aspirant prosecutors from law schools, the NPA advertised internally, within the justice department, and was able to get 97 “aspirants” into training, without additional monetary cost, because they were already on the department’s payroll.
Maleka was one of these. He had been an administrative clerk in the justice department, studying for his LLB, part time. Now, he is studying for a master’s in criminal law, he says.
Last year, Justice Minister Ronald Lamola secured some much-needed extra money from the treasury, even though it was unbudgeted. Now the NPA has been given another big budgetary boost. In his recent budget speech, Finance Minister Tito Mboweni said the NPA, the Special Investigating Unit and the Directorate for Priority Crime Investigation will receive an additional R2.4-billion.
“This will enable the appointment of approximately 800 investigators and 277 prosecutors who will assist with, among other things, clearing the backlog of cases such as those emanating from the Zondo commission,” said Mboweni.
The aspirant prosecutors do not deal with big corruption or state-capture cases. But the head of the Aspirant Prosecutors Programme, advocate Daphney Rangaka, says having the aspirants in court dealing with the smaller matters — assaults, thefts, drunken driving — frees up their seniors to work on the bigger, more complex cases.
More importantly, the programme has been crucial in creating a pool from which prosecutors can be drawn. “I can proudly, proudly, proudly say that our retention rate is about 96%,” says Rangaka. She says when she sits on interview panels for senior posts in the NPA, sometimes a candidate will remind her: “Advocate Rangaka, don’t you remember me? I was one of your aspirants.”
Training begins in a classroom — for six to eight weeks, says Rangaka. Then the “aspirants” are sent to a court for mentoring by a more senior prosecutor. After about six weeks of mentoring, they begin their own court work.
“We make them start with postponements,” says Rangaka. They then do guilty pleas followed by sentencing. After this they move on to full trials, she says, and are allowed to take charge of a court roll in a district court — helped by seniors when they need it.
Daphney Rangaka, the head of the NPA’s aspirant prosecutors programme. (Alet Pretorius)
Rangaka adds that, before they are sent out into courtrooms on their own, they have a mock trial at which they are assessed.
Magistrates and interpreters (with no legal training, yet often the best lawyers in the room) also help, says Mokome Maphopha, the senior prosecutor at the Pretoria North magistrate’s court. Maphopha, a prosecutor for 27 years now, says prosecution is not for everyone — the most important trait is self-confidence.
Maleka is indeed calmly confident as he gets through his roll this Tuesday morning. He answers all the magistrate’s questions, he quietly objects when one of the private attorneys tries to pull a fast one. He is polite to the queue of people — accuseds, witnesses, lost family members, defence attorneys — waiting to see him during the tea adjournment.
Former aspirant Angus McKenzie is less complimentary about the programme, which he completed back in 2010. He says much depended on the individual mentor assigned.
When there was a diligent mentor, aspirant prosecutors were better prepared. “Ours was not very interested,” he said.
Then, when he had to manage his own court, there were times when he was not equipped to deal with certain cases — “it was not a positive experience”. Now at the Johannesburg Bar, he says there is no comparison with the training received during pupillage.
But McKenzie nonetheless says that restarting the Aspirant Prosecutors Programme is still “good news”.
“My own subjective experience aside, it’s a programme that the NPA should be running. But they should make sure they have the right people doing the training.”
Asked whether the training is sufficient, Maleka smiles and says it is a base. “Training is continuous,” he says. “Even some legal practitioners, even some judges, need training.”
Asked where he wants to end up in his career, Maleka says: “On the bench.”
“The magistrate’s court Bench or the high court Bench?” He answers: “The Constitutional Court Bench.”