A Matter of Justice: Sorry state of justice outside the media’s eye
Carmel Rickard
When one local magistrate sarcastically refers to an accused as a ‘cowardly moffie’ (homosexual) during sentencing, and others in the same jurisdiction are taken to task by the High Court for equally improper conduct; when prosecutors from that area are consistently said to be failing the public in their poor handling of investigations, then it is high time to pay attention: what exactly is happening to justice in South Africa out of the eye of the media?
A series of decisions from the Northern Cape High Court (Kimberley), which deals with the large rural area of the province, disclose some of local Judge President Frans Kgomo’s frustrations. These contentious decisions also suggest that the prosecuting authorities, under fire for the role certain of its departments and individuals are now playing in relation to national politics, should pay more attention to their basic mandate and deal with serious problems caused by staff at the local level not doing their job properly.
In one of his most recent decisions, for example, Kgomo commented, with obvious displeasure: ‘There is a sick, very sick, malady emanating from the Upington District and Regional Court.’
Giving judgment in an appeal from another case heard in that same Regional Court, the judge asked why the magistrate did not intervene over the behaviour of defence counsel for the accused in relation to a key witness, neighbour of one of the accused. Kgomo said she was an ‘extremely good witness’. But defence counsel seemed ‘not to appreciate his duty to his client and to the court’, and he ‘unjustifiably attempted to make (the witness) out to be a woman of loose morals who was involved in a love relationship’ with a black man (a ‘swart man’ or a man of a ‘swart-nasie’). The magistrate never questioned why the lawyer was ‘playing the race card’ and did not call counsel to order.
Having correctly convicted the accused of murder with direct intent, said the Judge President, for the magistrate then to have sentenced him to a mere eight years in jail ‘was a travesty of justice’. It showed the magistrate did not have regard to the minimum sentencing legislation or the many cases in which the higher courts indicated the circumstances when a trial court may depart from imposing these sentences.
Moreover, said Kgomo, despite this inappropriate sentence the state did not appeal, even though the accused was ‘an unmitigated liar’, who armed himself with a sword-like weapon, hid it under an army coat, drew it when there was no danger lurking, pursued the unarmed deceased who fled, stabbed his quarry three times in the back and then, when his target fell down, stooped over him and ‘to quench his bloodlust’ plunged the weapon several times including once into the heart of the deceased, killing him.
‘For the state not to have appealed the sentence is heaping insult (on) injury to the deceased, his family and society. This brings the administration of justice into disrepute.’
Then comes this paragraph, with its suggestion that the prosecuting authorities are playing a political game on the local as well as the national stage: ‘This Bench (the High Court in Kimberley) has been asking in numerous judgments since … 2000 why such serious cases are assigned to the Regional Court. Ours have been (voices) in the wilderness. The office of the Director of Public Prosecutions must do something about assigning chicken-feed to the High Court and matters of such serious magnitude to the regional court.’
He further criticised decisions of the magistrate in the case as highly irregular and unprocedural and added that society was ‘becoming restless’ and may ‘soon run out of patience’.
Another shocking decision that drew the ire of the judge related to what should have been a relatively simple case in which to secure a conviction. It involved the vaginal and anal rape of a 16-year-old girl. But when the accused appealed the judges discovered that the matter was handled so badly by the prosecution and the Regional Court that the conviction had to be set aside.
In their appeal judgment, Kgomo and a colleague listed 14 examples of where the prosecution or police were found wanting or where the magistrate should have intervened but did not do so.
These include failure to observe some of the most basic rules and precautions. Among them, relatives of the accused were given unsupervised access to the car of the accused by the police. The car was a key element in the case and during the time family members had access to the vehicle crucial evidence mentioned by the girl who was raped could have been removed or destroyed.
In his conclusion Kgomo said the police and the state failed everyone: the girl who was raped, her mother who was so stressed by the events that she was ‘on the verge of collapsing, ‘her little sister who cried bitterly at the ghostly sight of her ravaged sibling, the father who must have been silently devastated and society at large that is running out of patience at such abject incompetence.’
‘The truth is that the case was not investigated at all, nor was it properly prosecuted due to complacency, indifference and indolence.’ Then in an obvious reference to the promotion possibilities of those involved in the poor investigation and prosecution he added, ‘May we never see those responsible for this shoddy work in higher office without accounting for their dereliction of duty.’
In yet another case earlier this year two judges of the High Court in Kimberley heard an appeal concerning an accused who allegedly assaulted his wife, threw stones at her and threatened to kill her. Found not guilty on one charge the husband was convicted of ‘assaulting her with a stone’ and sentenced to three years in jail, conditionally suspended for five years.
After a detailed analysis of the evidence the high court concluded that the magistrate applied the wrong tests to determine the guilt of the accused. The court also severely criticised the ‘conspicuous failure’ of the prosecution on many issues.
The judges slammed the magistrate’s sarcasm directed at the accused and noted that the magistrate’s choice of language left much to be desired, particularly with the use of words ‘not ordinarily used in mixed company and … not expected in a judgment.’
‘The most shocking of all, however, was the magistrate’s outburst in his judgment on sentence, when he accused the appellant of being a coward and a so-called ‘moffie’. Language like this is completely unbecoming of a presiding officer and must be condemned in the strongest possible terms.’
Several other judgments over the last year, heard by this division of the High Court, contain similar remarks by the local judiciary voicing frustration at how badly the police, the prosecution and the magistracy have handled cases, and in so doing, how they have let down the people most concerned in these matters as well as the broader public.
Asked for comment by A Matter of Justice, Kgomo said the failure of the police, the magistracy and the prosecution in the court’s area of jurisdiction was ‘a big problem’.
He listed three main difficulties that currently plagued his court.
It had become a tendency that convicted prisoners serving time after being sentenced, decided to appeal some years later, only for the authorities to find that the records of their cases had mysteriously disappeared. Most of these cases were from the Upington district and regional courts. A thorough investigation of the situation was urgently needed.
There was a problem that the local prosecuting authorities did not refer cases to the DPP to decide which level of court should hear them. Instead, particularly if the matter involved was sensational, they preferred to keep them and argue the cases themselves at the Regional Court level. This meant that cases were often inappropriately allocated. The High Court, which had the capacity, was kept out of the loop and allocated cases that were not so serious, while the Regional Court already had a problem of backlogs and could not properly manage document control. In addition the magistrates and prosecutors sometimes made serious mistakes when they heard difficult cases. There was now an acting DPP who ‘said he was looking into the matter’, said Kgomo.
The third problem was that some magistrates, prosecutors and police in the province did not do their work properly and acute problems arose for the administration of justice as a result. In one case earlier this year, for example, the police had handled a rape case so inadequately that Kgomo and one of his colleagues wrote a report to the provincial police commissioner detailing the shocking way the police had treated the woman.
Judge Kgomo said these were all matters of great concern and between them they seriously impacted on justice in the province.
Judgments referenced in the report above
