Saturday, April 13, 2013

South Africa: The Tatane case raises hard questions for South Africa`s National Prosecuting Authority

Source: ISS

The Tatane case raises hard questions for South Africa`s National Prosecuting Authority

Following the acquittal of seven police officials accused of killing community activist Andries Tatane in April 2011, the South African National Prosecuting Authority (NPA) has been on the receiving end of strident public criticism. Tatane’s death was captured on video and so this was seen as an ‘open and shut case’. In response to public anger at the judgment, the NPA released a media statement in which it argued that the reasons for the failed prosecution lay primarily with the police witnesses, who deviated from previous statements they had made and were therefore found by the court to be unreliable. The NPA further stated that it was highly unlikely that it would win on appeal and that instead it would be investigating perjury charges against the witnesses who had changed their testimony under oath. Ultimately, those responsible for the death of Tatane have escaped justice.

Is the failure of the NPA to achieve convictions in this case symptomatic of deeper problems facing this important institution in South Africa’s criminal justice system? Certainly, the NPA prides itself on its high conviction rate. Speaking before the Justice Portfolio Committee in Parliament on 16 October 2012, acting head Nomgcobo Jiba stated that the NPA had an overall conviction rate of 88,8% in the 2011/12 financial year. This means that the NPA achieved a conviction in almost nine out of ten cases that it had prosecuted.

By comparison, the Crown Prosecution Service (CPS) in London achieves convictions in between 60% and 70% of the cases it prosecutes. Does this mean the NPA is outperforming the CPS? The problem with relying solely on conviction rates is that cases that are not prosecuted are not counted. The NPA’s approach is to prosecute cases where there is a strong chance of achieving a conviction, and this is one factor in keeping the conviction rate high. This figure, however, says little about overall prosecutorial performance.

A study by the Institute for Security Studies (ISS) assessing the NPA, published in 2012 (see found that the NPA compared relatively poorly with the CPS on overall productivity. For example, NPA prosecutors finalised two cases per week on average, compared to the nine cases per week finalised by CPS prosecutors. Using this measure, CPS prosecutors were four and a half times more productive than those of the NPA. International comparisons do, however, have their limitations, and the NPA undertakes a lot more work than that which is reflected by the statistics. Nevertheless, the study found overall that the ‘tendency to decline to prosecute is the central malaise affecting the system, rather than … an excessive workload or lack of resources’.

In the past decade in South Africa, between 2002/03 and 2011/12, the number of cases finalised with a court verdict decreased by 22% and those ending in a conviction decreased by 15,6%. This means that in 2011/12 there were 91 432 fewer cases finalised with a verdict and 51 886 fewer convictions when compared with 2002/03. While the reductions in these figures are partly the result of fewer cases being referred to the NPA by the police, the study found that there were substantial differences in performance between prosecutors. For example, prosecutors with higher caseloads (i.e. dealing with more than 350 cases) achieved better results than those with lower caseloads (i.e. under 250 cases per prosecutor).

Considering that overall, the NPA achieves a high conviction rate, the acquittal of the police officers charged with murdering Tatane suggests that more attention should be devoted to the performance of prosecutors. Having said this, it is worth remembering that prosecutors operate as one part in a broader criminal justice system, which means that their successes and failures can often be linked to the competence of officials in the police and prisons. Ultimately, successful prosecutions will depend on effective working relations between police and prosecutors, and this in turn requires political commitment from the ministers responsible for these departments.

When assessing prosecutors’ performance, another factor to be considered is that conviction statistics matter little if there is widespread public perception that the NPA is not performing well. The NPA has been receiving bad publicity for some time now. The appointment and removal of the previous National Director of Public Prosecutions, Menzi Simelane, who was found to be dishonest by the Ginwala Commission, undermined the NPA’s public credibility. The same can be said of controversial decisions to withdraw criminal charges against various politically connected individuals and decisions not to prosecute politically sensitive cases.

Public trust is crucial for the credibility of the NPA. The organisation’s leadership should therefore ask hard questions about the decisions taken in the Tatane case. Given the high profile nature of this case, why was it not referred to the High Court? Did the prosecutor working on this case have the necessary experience to deal with the difficult job of prosecuting police officers? A good example of this is the immense pressure and intimidation that Prosecutor Gerrie Nel was subjected to while prosecuting former SAPS National Commissioner Jackie Selebi for corruption. Police culture worldwide is characterised by officers ‘looking after their own’. It must be expected that state witnesses who are police officials will come under tremendous pressure when required to testify against their colleagues. In the Tatane case it certainly appears that the police witnesses changed their testimony to support their colleagues who were facing trial.

The acquittals in the Tatane case are another blow to the reputation of the NPA. It is therefore crucial that a review of this case is undertaken to establish whether anything could have been done differently to achieve justice. At the end of 2011/12, 8 846 police officials were facing criminal charges. The NPA should assess its approach when prosecuting police officials to avoid similar outcomes in future. This is important if the NPA is to achieve justice and restore its credibility in the upcoming high-profile prosecution of the nine police officials arrested for the alleged murder of Mozambican taxi driver Mido Macia.

Gareth Newham, Division Head and Hamadziripi Tamukamoyo, Researcher, Governance, Crime and Justice Division, ISS Pretoria