Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
2 November 2006

Nqakula’s proposal a quick fix

Safety and Security Minister Charles Nqakula’s proposal to amend the Constitution so as to allow Police to detain arrested suspects for longer than 48 hours before charging them in a Court of law, sounds like a spectacularly unwise idea. He is arguing that Police find it difficult to always formulate a charge before the end of the 48 hour period and suspects are then set free and even sue the Minister for wrongful arrest. There are at least three ways to respond to the Minister of Safety and Security.

  • First, it is obvious that there is, what I will politely call, a capacity problem within the Police force. Why do the members of the Police Force find it so difficult to formulate charges when they have caught serious criminals? Is it that they are so overworked that they cannot get to all the stuff or is it that they do not know the first thing about the law and thus take ages to come up with a charge? Either way, changing the Constitution is a quick fix because its much easier changing the law than changing the way the Police operates. Training Police and appointing more staff takes time and money. Changing the law sounds good and looks good, but seldom produces the required results.
  • Second, there is no evidence that extending the period will make any difference. We all know that in most institutions – especially where there are “capacity problems” – things get done because there is a deadline. That is why the Department of Justice suddenly spent vast amounts of money a few weeks before the end of the financial year. Giving more time will probably just extend the time in which the Police fails to formulate a charge.
  • Lastly, do we really trust the Police to use such a power wisely? What happens to all those people who are wrongfully arrested and must now stay in a police cell with hardened criminals not for 48 hours but for longer periods? The Minister is assuming that only the “real” criminals will spend time in jail and that the Police will be able to know which suspects to keep for longer periods and which to let go. This is a very dangerous and misguided notion. Say I was stopped by the Police and I gave them some lip – remarking on the fact that the Policeman was overweight, say – and the Officer gets irritated with me. Next thing he will decide, lets lock him up for as long as is legally possible to teach him a lesson. And that is a benign example. Even in a democracy, one should never give the Police too much power because there WILL always be those Police Officers who abuse their power.

On the Cape Talk with John Maythem this afternoon, Peter Gastrow suggested we should re-look our Criminal Procedure model and investigate whether it would not be better to move towards a more inquisitorial system, like on the Continent. That way Magistrates, say, could play a more active role in the run up to a trial. Interesting suggestion worth exploring I think.

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