For a country that has become a favourite playground for criminals, South Africa seems on the whole to be lenient, almost forgiving, towards those who break the law. The general impression is that the justice system is kind to criminals.
The sight of people — they’re mostly women — demonstrating outside the courts has become so common we no longer give it a thought. Those among us with noses in the air tend to dismiss it as the action of people who have nothing else to do with their simple lives. Often these people may not even know the victim, or stand to gain anything personally either. But they spend their time and resources and expose themselves to the elements to protest on issues they feel very strongly about.
They may not understand the basics of the law, but they know how it affects them and their communities. The criminal justice system just doesn’t work for them — the police are often unresponsive to their complaints; suspects easily get bail; accused are released either on technicalities or through the sheer incompetence of the prosecution; murderers and rapists either get out scot-free or are sentenced to long terms in prison, only to be released prematurely and then go on to commit even more heinous crimes. The list goes on.
We always seem to shirk our responsibility and leave it on the shoulders of those least qualified or capable to carry it. Nhlanhla Mkhwanazi, for instance, was not the first person to highlight the collusion of the police with criminals. But these allegations have gained traction because of the internal machinations that he’s privy to, and the fact that, for the first time, a senior police officer is publicly saying these things.
The problem has been hiding in plain sight. This month, for instance, marks the fourth anniversary of the riots and looting that took place in July 2021, and the police’s unconscionable decision to sit back and watch the carnage. Then police minister Bheki Cele congratulated the police, saying they did a good thing by doing nothing. It’s now beginning to make sense.
But what seems to animate ordinary people more than anything else is the generous release of suspects on bail, which magistrates and judges seem to grant like they’re distributing confetti. According to the law, no-one may be detained without trial unless necessary. The burden of proof in a bail application lies with the state. But one would think that magistrates or judges would be more circumspect when dealing with suspects involved in serious crimes such as murder, rape or kidnapping.
It’s clearly stated that an accused person should not be released on bail if they’re deemed to be a flight risk, a danger to public safety or likely to interfere with witnesses. No-one presents more danger to society or is more likely to interfere with witnesses than someone accused or murder or rape. Such people would do anything to get out of their predicament. But some judges and magistrates evidently disagree. They live in their own bubble, completely oblivious to what’s happening around them. Suspects are being released on bail only to go out and commit even more crimes. Some of these people, it would seem, see their release as a kind of permission to carry on with their rampage.
It would be nice sometimes if presiding officers were to listen to the investigating officer, the people who do the legwork, before releasing suspects with seeming alacrity. It is, after all, these officers who have to go chasing after these suspects should they abscond.
The man who appeared in court this week charged with the murder of Ekurhuleni municipal auditor Mpho Mafole allegedly committed this heinous act while on bail for another murder. Philangenkosi Makhanya, who, with some of his associates, kidnapped and killed Olorato Mongale, the Wits student, was out on bail for kidnapping. Makhanya was later killed by police in KwaZulu-Natal.
Sometimes magistrates refuse bail only for that decision to be overturned by a higher court. Katiso Molefe, the man arrested this week for the 2022 assassination of Oupa John Sefoka, aka DJ Sumbody, was last year denied bail by a Vereeniging magistrate in a case involving the killing of Armand Swart, who was shot 23 times. But deputy judge president Aubrey Ledwaba saw no reason for Molefe to remain behind bars, and reversed the decision in an appeal.
People with means, especially those accused in state capture cases, employ expensive lawyers who arrange for them not to be arrested but to merely show up in court for bail applications
The man who killed 18 people at a family gathering in the Eastern Cape last year was out on parole for murder.
There are too many such cases, and it’s difficult to understand why those presiding over our courts don’t seem to take them into consideration before making calamitous decisions.
Three years ago, 27 people, including Pakistani nationals with fraudulent documents, were arrested for involvement in a passport fraud syndicate. The state initially opposed bail, but then agreed to release them on R2,000 bail. The magistrate reduced it to R500. Some of them disappeared like water in dry sand.
The most famous case of a suspect who took to his heels is obviously that of Shepherd Bushiri, the self-styled Malawian pastor, who was released on bail and promptly fled the country. The government has since been trying to get him back to stand trial. One sometimes gets the sense that if the Gupta brothers had been arrested they too would probably have been given bail.
People with means, especially those accused in state capture cases, employ expensive lawyers who arrange for them not to be arrested but to merely show up in court for bail applications. That’s clearly an abuse of the system, and it sticks in the craw.
Last month, Brian Molefe and his fellow travellers from Transnet made a brief appearance before the Palm Ridge specialised commercial crimes court on 18 charges of fraud and corruption. The state wanted bail set at R200,000. The magistrate released them on R50,000 bail. It obviously doesn’t hurt to have deep pockets.
Those toyi-toying outside the courts aren’t deluded; they have a point. The law must serve their interests too.
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