‘High-risk’ gang cases exacerbate Western Cape High Court backlog and spark concerns for those awaiting justice

Suspended Western Cape Judge President John Hlophe. (Photo: Gallo Images / The Times / Moeletsi Mabe)

By Caryn Dolley

30 Aug 2023

Concerns have before been raised about the workload of judges at the Western Cape High Court. It has emerged that several major gang cases are draining resources, raising questions about when some trials will be heard and what will happen to new matters referred to the court.

Some of South Africa’s biggest gang trials have played out in the Western Cape Division of the High Court in Cape Town.

And while some of them are still unfolding, others are yet to commence.

For example, there is a case centred around the Terrible Josters gang, involving 20 suspected gangsters who face more than 150 charges, including several counts of murder.

The main accused in the case is alleged gang leader Elton Lenting.

‘High-risk’ gang trials

Daily Maverick has reported that when the group appears in court for the trial, which is ongoing, there is a visible police presence and Tactical Response Team officers monitor proceedings.

There is also the case against Elcardo Adams, allegedly the head of the Mobsters gang, which has ties to the 28s gang, who faces charges alongside several other accused.

In a judgment relating to Adams, delivered in October 2022, it was found that evidence suggested members of the 28s gang had infiltrated the Western Cape’s police management structure, as well as the Anti-Gang Unit.

Read more in Daily Maverick: 28s gang ‘capture’ top Western Cape cops, prosecutors’ lives at risk – judge sounds corruption alarm

Trials that are yet to proceed in the Western Cape High Court include that of Nafiz Modack and several other men, who are accused of crimes including the assassination of Lieutenant-Colonel Charl Kinnear, who was shot outside his Cape Town home in September 2020.

More cases than judges

Daily Maverick has established that there are deep concerns in legal circles about the number of cases judges are dealing with — and what this could mean for survivors of crime and their families awaiting justice.

In response to questions about backlogs, Acting Western Cape Judge President Patricia Goliath told Daily Maverick on Wednesday that there were 48 active trials in the Western Cape High Court and of those, 11 could be “considered as backlog matters”.

She said it was “the norm” that there were “always more cases than there are judges available for allocation”.

There are 32 permanent judges at the Western Cape High Court and of those, 15 are dealing with criminal trials.

Four acting judges are finalising, on an ad hoc basis, matters that they had not completed during their acting periods.

Gangsterism cases ‘absorbing resources’

But gang cases are causing problems, which is especially worrying as the Western Cape is regarded as South Africa’s gangsterism capital.

“There are currently a substantial number of high-risk gang-related matters with multiple accused on trial in this division. These matters are absorbing a large amount of resources, including judges, and often run for multiple terms,” Goliath said.

“Consequently, certain matters are not finalised within the allocated time periods. Given the backlog in the criminal division, a comprehensive review was undertaken to identify appropriate measures to deal with the backlog, which we are in the process of implementing.”

It has been reported that a new courtroom is expected to be opened at Goodwood Prison in Cape Town in October. Some cases could be heard there.

But Daily Maverick understands that there are concerns in legal circles that backlogs could result in cases being struck off the court roll, which could see accused persons walking free and those waiting for justice left in the lurch.

But Goliath, in her response to questions about backlogs, said: “No matters other than those permitted in terms of the law may be struck off the roll and it is solely within the discretion of the presiding officer seized with such an application.”

‘No judges available’

Towards the end of July, News24 reported on resource issues at the Western Cape High Court.

It reported that the trial of a group of men accused in a murder plot, that of the August 2017 killing of Brian Wainstein in Cape Town, was meant to have proceeded, but did not because of a shortage of judges.

Among the accused in the case are controversial Cape Town figures Mark Lifman and Jerome Booysen.

Read more in Daily Maverick: Charges against murdered ‘Steroid King’ reveal a global web of crime cases

A trial date of July 2024 was subsequently proposed.

News24 quoted Judge Robert Henney as saying: “Today, we have to postpone almost 11 matters because there are no judges available.”

The article said that in another case he reiterated that no judges were available and “we’ve got 15 judges dealing with part-heards.”

It also quoted Henney as saying: “There’s no use having further pretrials in this court because nothing can run. There’s no judges to deal with it.”

Suspended Judge President

The Western Cape High Court has been beset by several other problems.

high court hlophe Suspended Western Cape Judge President John Hlophe. (Photo: Gallo Images / The Times / Moeletsi Mabe)

In December last year, President Cyril Ramaphosa announced he had suspended Western Cape Judge President John Hlophe.

Read more in Daily Maverick: John Hlophe — the Judge President who fought the law; decades later, the law won

This was related to misconduct matters.

“In order to ensure continuity and stability in the work of the divisional high court, the suspension which is in effect immediately, is on condition that Judge President Hlophe completes all part-heard matters and reserved judgments,” the Presidency said at the time of his suspension.

But it seems court backlogs have been a long time in the making and have been affected by various issues.

Backlog backdrop

Backlogs were also flagged early last year, ahead of Hlophe’s suspension.

In April last year, Daily Maverick’s Marianne Thamm reported: “Judge President John Hlophe sent a memorandum to all judges and acting judges in Western Cape pointing out that 39 reserved judgments had been outstanding for more than three months, the limit set out by the judges’ norms and standards.”

Attached to the memorandum, though, was a list suggesting there were more than 80 outstanding or “reserved judgments”.

Previously, though, the Western Cape High Court was doing well compared with its counterparts in other provinces.

Load shedding

The 2021-2022 Annual Judiciary Report said that at the end of the period under review, in other words, the financial year, “The total number of outstanding criminal cases in the various Divisions of the High Court was 917, whereas the total number of backlog cases was 453, representing a backlog percentage of 49%.”

“[This] is, therefore, an underachievement of 19% against the set target of 30%,” it said.

Continuous load shedding was flagged as having “an adverse impact on the operations” at courts.

The report said the “total outstanding cases” at the Western Cape High Court numbered 63 and there was a “total criminal case backlog” of 13.

This was a percentage of 21%, meaning the annual target of 30% had been met. DM

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