Quote of the week
Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
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.
