CRIMINAL (IN)JUSTICE GUARDIANS OF THE LAW TARGETED
With corruption in police ranks, threats to whistle-blowers and high-stakes political court cases on the cards, judicial officials say they are worried about their safety. By Caryn Dolley
State figures who have the daunting task of ensuring criminals are held to account increasingly fear for their safety, especially as pressure mounts for high-level State Capture cases to be prosecuted and whistle-blowers speak out about having to fend for themselves.
DM168 has established, via several officials linked to judicial processes who have asked to remain anonymous as they are not authorised to speak to the media, that prosecutors and, in some cases, judges, are concerned that the state will not be able to protect them.
Some feel they have been largely left to ensure their own security. An official has, for several years, resorted to only renting property so that they can keep moving and suspects will find it harder to pinpoint where they live.
In just five days, the homes of two State Capture whistle-blowers – former South African Revenue Service (SARS) executive Johann van Loggerenberg and former Government Communication and Information System head Themba Maseko – were broken into, incidents they find suspicious.
Maseko was asleep in his Sandton house when two men tried to gain access in the early hours of 14 January, and Van Loggerenberg’s home and home office were burgled early on 18 January.
Aside from prosecutors and whistle-blowers, magistrates and judges are also at risk of being targeted. A survey conducted in 2020 by civil society platform Magistrates Matter with the University of Cape Town’s Democratic Governance and Rights Unit hinted at what magistrates were up against.
“Of the 165 respondents (almost 10% of all permanent magistrates) who participated in the survey, 44% indicated that they had been threatened due to their judicial role,” the unit told DM168 this week.
Research on superior court judges is still to be conducted, but it is believed they would report similar experiences, especially as they deal with more serious cases.
“This is a concern for us [because] judicial officers cannot be expected to dispense justice while they are in harm’s way themselves,” the Democratic Governance and Rights Unit said. “It is not reasonable to expect that every judge will be provided with a bodyguard, but we would strongly propose that the SA Police Service (SAPS) conduct rapid threat assessments in serious criminal cases and provide protection to all justice stakeholders involved, including prosecutors and judicial officers.”
The Justice and Constitutional Development Department has security procedures in place that involve SAPS.
Adding to fears about the protection of state officials is the problematic status of policing and intelligence in SA. These security structures have been accused of corruption and face allegations that they were abused to suit a political faction aligned to former president Jacob Zuma. Acting Chief Justice Raymond Zondo is due to release a report about this from the findings of the State Capture Commission.
At some criminal cases, especially in the country’s gangsterism epicentre the Western Cape, suspects arrive at court with an entourage of men – apparent bodyguards – creating the impression they may be more secure than those meting out the law.
The National Prosecuting Authority (NPA) detailed some of its security measures to DM168 this week and said no threats had been carried out against its officials involved in high-risk matters.
There are fears that this will change, however.
In just over a year, there have been at least three rattling assassinations: that of a police detective who was investigating crimes that had links to the state, a whistle-blower who knew of corruption within a government department, and a prosecutor outside a court. Two other prosecutors, one in the Western Cape and the other in the Eastern Cape, were murdered while off duty last year. The motives behind their killings were not immediately clear.
There are broader fears within judicial circles that not enough is being done about their security and that this will affect them more once State Capture cases develop.
Chrispin Phiri, Justice ministry spokesman, told DM168 this week: “There [are] no specific plans developed for State Capture cases; however, such plan will be developed depending on the risk attached to each case in a specific court and category of people who will be appearing in courts.
“Safety of the judiciary has been and remains a concern globally. The [department has] been and continuously puts measures [in place] that are adequate to minimise the threat to prevent the risk to the lives of court officials.”
Whistle-blowers have also raised red flags about their safety. After the break-in at his home, Van Loggerenberg said: “Four very distinct indicators ... suggest that it may not have been ordinary criminal conduct.”
Van Loggerenberg, who is part of two whistle-blower support groups, added: “Many of us in these groups have, for many years, been and remain fearful and concerned for our safety and security.
“Continued calls upon the government to assist us in assessing risks to us, risk to the evidence we hold and to assist in ensuring our wellbeing have received no response or action or even acknowledgement,” he said.
Maseko has labelled the break-in at his home as suspicious. It happened just hours before he was meant to participate in a whistle-blowers’ media briefing.
Whistle-blowers who appeared at the State Capture Commission did not fall under the mandate of the NPA, which has a witness protection programme, Parliament was told in November last year.
“The NPA was engaging with the Department of Justice to deal with this matter. Many parties, including government departments and businesses, needed to come together urgently while the legal framework was being considered,” say the minutes from that meeting in Parliament.
In his weekly address to the nation on Monday 17 January, President Cyril Ramaphosa seemed to refer to recent incidents involving the targeting of state structures and an ANC politician’s written attack on the judiciary.
He said: “We must safeguard against any and all efforts to diminish our hard-won democracy – whether these efforts take the form of corruption in state-owned enterprises, the subversion of our law enforcement agencies, the sabotage of our economic infrastructure, or attacks on the independence and integrity of our judiciary.”
In one of the latest incidents that targeted judicial officials, regional prosecutor Lonwabo Booi was murdered on 15 December 2021 when he arrived at work at the Umlazi Magistrate’s Court in KwaZulu-Natal.
Although it was not immediately clear what the motive behind his killing was,
TimesLIVE reported that the prosecutor had been involved in a case against two police officers facing murder charges.
National Director of Public Prosecutions Shamila Batohi issued a statement after the shooting, saying: “The increase in attacks on those fighting for justice in our country should concern all of us. We need to significantly improve the protection of criminal justice officials, whistle-blowers and witnesses in South Africa.
“The rule of law depends on it. The future of our country depends on it. And we owe it to these brave men and women. This will require a multistakeholder effort driven by government. And time is not on our side.”
About a week after Booi’s murder, a group of prosecutors protested in Pietermaritzburg, with one telling a reporter from The Witness:
“We are dealing with dangerous criminals, yet we don’t get full protection.”
Isaac Dhludhlu, the NPA’s spokesperson, told DM168 this week that “an approved employee protection and assistance policy” had been put in place to deal with the protection of threatened officials.
The Security Management Services (SMS) Unit was responsible for staff safety.
Dhludhlu said it was up to prosecutors to report possible risks they faced to the unit.
In Booi’s case, he said, the unit had not been aware of any threats.
“The SMS Unit maintains an up-to-date database of all reported cases for recordkeeping,” Dhludhlu said. “Protection of staff is a very costly exercise and, in line with the need for good governance, requests for protection and the implementation of other security measures are considered after carefully evaluating the risks to the individual.
“The NPA works with the police and other stakeholders in this regard. When the affected staff members need to appear in high-risk cases, the provisioning of protection and other security measures is planned and executed in close collaboration with various stakeholders,” he said.
The Justice and Constitutional Development Department also had plans in place to deal with staff security involving the SAPS.
In response to DM168 questions about how this worked, it said that, in high-profile cases: A threat assessment would be carried out and given to the judicial officer presiding over the matter.
Work and residential assessment reports would be forwarded to the SAPS’s Crime Intelligence unit, as well as to the Justice and Constitutional Development Department’s Security and Risk Unit.
A security plan, involving consultation with figures in the justice and security areas, would be created and approved. Based on the plan, Crime Intelligence and the department’s security and risk unit would approve protection services to the presiding magistrate and their family for a set period. More threat assessments would be conducted as a case progressed.
DM168 established, however, that the involvement of the SAPS and its Crime Intelligence unit in judicial security was worrying to some. This is because of corruption and problems among police officers.
Allegations of rogue operatives working in Crime Intelligence have surfaced before and the effectiveness of the unit has also been brought into question.
For example, in the case of police officer Charl Kinnear, who was assassinated outside his Bishop Lavis home in Cape Town in September 2020, threats against him were publicly known.
Kinnear’s investigations involved looking into fellow officers and were rooted in the Western Cape, where the legal fraternity has come under attack. (Four lawyers were murdered in the three years ending in 2019, and two others targeted in 2020.)
In a bail application in Cape Town in February 2018 that Kinnear was testifying in, he said Crime Intelligence and the State Security Agency had picked up on a plot to have him murdered, along with two other police officers and the prosecutor in the case.
Other threats followed this.
After Kinnear’s assassination, the Independent Police Investigative Directorate looked into why he did not have security at the time of his murder.
The directorate found: “It became [clear] that the SAPS – that is Crime Intelligence in particular – failed to properly assess and implement threat and risk assessment.”
Based on a response to parliamentary questions in March 2021, the NPA, the Department of Justice and Constitutional Development and the Office of the Chief Justice make use of private security companies, at the cost of hundreds of millions of rands, to bolster the protection of staff and buildings.
A one-year contract, which ends on 28 February, for “security guarding and special services in various offices” in those departments in the Western Cape and Gauteng amounted to more than R205-million.
The Special Investigating Unit, members of which have been threatened, also uses private security companies.
From the end of January to the end of April 2021, it cost just under R280,000 for the “provision of armed close protectors for an SIU employee [in Bloemfontein] on very high-risk investigation, after a SAPS security assessment recommendation”.
Daily Maverick has reported that there were concerns that criminals had infiltrated parts of private security.
There were also suspicions that rogue intelligence officers in the state could be involved in some private security companies.
Criminal infiltration of private security was an area that Kinnear was investigating.