The increasing use of vigilantism in our communities is deeply concerning and signals that our people no longer trust our legal system – including the judiciary – to successfully attain justice for victims.
South Africa’s judiciary was once considered the best in the world: responsive, accessible and in touch with the reality on the ground. However, while the judiciary played a crucial role in protecting the poorest from further suffering during State Capture, it now faces several challenges which risk eroding the trust it worked so hard to build over the past three decades of democracy.
Particularly at lower levels of the court, it appears that those with financial resources or connections can avoid accountability, leading to a rise in communities taking justice into their own hands.
Nothing can be more symbolic of the crossroads the judiciary is facing than the recent Judicial Service Commission (JSC) interviews that took place during the course of last week.
For a fifth time, the JSC overlooked one of South Africa’s most respected legal minds, Judge David Unterhalter, for appointment to the Supreme Court of Appeal (SCA) despite Unterhalter frequently acting for the court – and being one of its most active judges.
JSC deficiencies
In one of Unterhalter’s most remarkable remarks during his interview, he mentioned how a recent Constitutional Court ruling could “open the floodgates” for unreasonable demands for Eskom to supply electricity to indebted municipalities, and potentially amounted to judicial overreach.
His concern was for the court’s independence and to ensure that rulings do not further complicate service delivery on the ground. But, instead of a brilliant mind being celebrated, his appointment was blocked, which many commentators attributed to EFF leader Julius Malema, who sits on the JSC.
Similarly, the court refused to promote Gauteng High Court Judge Thina Siwendu – who Judges Matter recognised as “one of the first black women to successfully run her own commercial attorney’s firm” – to the SCA.
This was despite her judicial term as a judge of the Special Tribunal of the Special Investigating Unit and her legal work at corruption-ravaged Eskom and SAA, which could have potentially given her much-needed insight into state financial irregularity, corruption and misconduct at parastatals.
Their exclusion from the SCA means that only two of the four vacancies at the appeals court were filled, and therefore the court still lacks the capacity it lost in recent years. This negatively impacts on the speed and accuracy with which the court can deliver its judgments, effectively delaying justice to many who turn to the court.
It’s another sign of how the JSC does not live up to its intention set out in the Constitution to appoint highly qualified and independent judges, and why delegates at ActionSA’s recent policy conference voted to reduce the number of politicians represented on these bodies.
The wealthy avoid accountability
However, the JSC’s deficiencies are only one sign of the overall decline in judicial services in South Africa.
At an expert panel in Johannesburg in August as part of ActionSA’s policy formulation process, senior advocates, academics and activists all lamented the dysfunction within the administration of courts across the country, particularly at magistrates’ courts, which are the lowest in the country.
Practically, this means that while the wealthy may have the money to escalate cases to higher courts, the poorest are often subject to malfunctioning magistrates’ courts where justice is delayed or, even worse, never achieved.
How many times have we seen the wealthy and powerful use their resources to seek postponement or delays in South Africa’s legal system, which has been described as the Stalingrad tactic?
It is simply unacceptable that in a country with a legal framework which states that everyone is equal before the law, the judicial system can effectively be used by a select few to avoid accountability.
What example does it set when we see people committing crimes, successfully avoiding prosecution such as with former president Jacob Zuma, or escaping the country as we have seen with preacher Shepherd Bushiri or the infamous Gupta family?
I have witnessed first-hand this injustice when we assisted one of our members, Patricia Khoza, in Primrose, Germiston, in January this year to help arrest a man who illegally hijacked a building, extorted residents and even illegally received city services.
After his arrest in January, the case against the man was repeatedly and frivolously postponed and only in September – nine months later – did his trial formally start. There, he was again released on bail, despite not having any South African documentation and therefore constituted a flight risk.
Solutions to the difficulties experienced
However, there are solutions to the difficulties currently being experienced within the judiciary.
ActionSA proposes that as a matter of priority, the National Prosecuting Authority’s (NPA’s) reporting line and budgetary item should move from the Minister of Justice and Correctional Services to Parliament to avoid political interference.
From there, the NPA’s budget should be increased to ensure that more prosecutors are appointed to help communities across South Africa get the justice they deserve. No person should again get away with committing a crime simply because there wasn’t sufficient capacity in the NPA.
Second, the budget allocation towards building or acquiring courts should be increased to help improve the accessibility to judicial services, particularly in rural communities.
Delegates also approved policies to make bail more difficult to attain, and to abolish bail altogether for grievous crimes such as rape and murder.
We don’t believe someone who might have threatened the lives of people in their community should be allowed to roam freely while awaiting trial, where they could inflict more damage on our society.
We also want to empower judges to impose harsher sentences in corruption cases by expanding the legislative definition of corruption to include abuse of political power for personal or political gain and increasing the minimum sentences for corruption.
We believe that South Africa’s judiciary can efficiently and effectively serve all South Africans, particularly the most vulnerable in society. But the increasing use of vigilantism in our communities is deeply concerning, and a sign that our people no longer trust our legal system – including the judiciary – to successfully attain justice for victims.
This is why urgent and drastic action is necessary to ensure that the judiciary operates effectively and efficiently, alongside broader law and order reform.
Too many worked too hard and too many fought too hard for South Africa to achieve an independent and efficient judiciary after it was effectively used as a political tool by the apartheid regime.
We should therefore all work together to protect its functioning and take the bold action necessary to ensure that everyone in our society can trust that it would protect them.
Unless we make these improvements, we risk further eroding the trust in our judicial system, which would contribute to a breakdown in the rule of law in South Africa.
We simply cannot allow this to happen. DM