When the law is an ass

Antony Altbeker reviews the judgment in the Fred van der Vyver damages case

ONE of the great benefits of living in a liberal democracy, you might think, is that when police officers charge you with a crime you did not commit and knowingly offer false evidence in an effort to put you behind bars, you can sue them for the millions of rands it cost you to prove your innocence.

You might think this, but you would be wrong.

That, at least, is the conclusion one has to draw from an extraordinary judgment handed down by the Supreme Court of Appeal on Thursday in the infinitely fascinating and utterly horrifying legal war between the South African police and a blue-blooded young actuary, Fred van der Vyver.

Battle was joined in March 2005 when Inge Lotz, Van der Vyver’s girlfriend, was bludgeoned to death in her Stellenbosch flat. The details of the case are complex, but the bottom line is this: After a 10-month criminal trial that cost Van der Vyver’s father R10-million, all the evidence the police produced was rejected by Judge Deon van Zyl, who took the opportunity to say some unflattering things about the competence, reliability and credibility of pretty much every police officer to testify before him.

Harsh as that judgment was, though, he refused to express an opinion on whether the police had been merely incompetent or had actively and maliciously fabricated evidence.

That omission was rectified in the damages suit Van der Vyver brought against the minister of police in 2011, when Judge Anton Veldhuizen ruled that not only was the evidence produced by the police flawed, but some of the most critical evidence was known by the officers concerned to be false. They had, therefore, been the cause of a malicious prosecution for which the minister of police was to be liable.

And, even while overturning his judgment, on this point, the appeal court actually agreed with Judge Veldhuizen: Not only had at least one police officer knowingly offered false evidence, he had known that his lies could be expected to lead to a wrongful prosecution. How, then, could the five judges on Thursday find that the police were not liable for the expenses Van der Vyver incurred in defending himself, or for the damages he suffered to his reputation?

The essence of their argument is that, although the police had lied to the prosecutors (and, later, to the judge), those lies could not have been the cause of the prosecution because the prosecutors knew the police were lying.

That ’ s right: Because Van der Vyver’s lawyers had given the prosecutors notice of all the weaknesses and falsehoods in the police case, and because the prosecutors had actually satisfied themselves that the police case was full of falsehoods and weaknesses, the police were no longer liable for any of Van der Vyver’s costs.

One (legitimate) response to this is to say that Van der Vyver should have sued the prosecutors. But even if he had, the fact remains that three courts have said that the police lied and lied and lied again. Despite this, Van der Vyver is stuck with the costs incurred during the criminal trial and he must now also pay the police’s legal bills for the civil case and the appeal.

Coming as it did in the same week as the acquittal of seven police officers alleged to have been responsible for Ficksburg activist Andries Tatane’s death and General Riah Phiyega’s unconvincing performance at the Marikana commission, the appeal court’s decision will strike many as further evidence that something is wrong with our criminal justice system.

It would be a mistake to draw too strong a link between all these events (the criminal case against the Tatane Seven seems weak; the events at Marikana are complex and contested), but all share an important common denominator: it seems increasingly apparent that South Africa’s institutions are unable to hold the police accountable for their actions.

What makes the Van der Vyver matter so galling is the willingness of the appeal court to overlook police abuses that they acknowledge must have happened. At one point during the hearing, for example, one of the judges asked Van der Vyver’s lawyers whether they really expected a policeman testifying under oath to answer honestly when asked whether it was possible that he made a mistake.

Given that the judges insisted that the policeman did, in fact, make a mistake, their insistence that his failure to acknowledge the possibility could not be held against him, seems like something out of Catch 22: even though he must

Good luck, in other words, holding police officers accountable for anything

have been wrong, they seemed to be saying, the officer’s refusal to undermine his case could not be held against him because, well, you can’t really expect police officers to say anything that might undermine their case.

As he asked this question, I was reminded of an analogous incident in the original criminal trial when Judge Van Zyl angrily denounced an American forensic expert, called by Van der Vyver ’ s lawyers, who had commented on the shoddiness of some portions of the investigation.

“‘ Do you realise we are busy with a criminal matter,” Judge Van Zyl said, “and that your personal opinions about whether the investigation was properly done or not are totally irrelevant for purposes of a South African court?”

It’s hard to know which idea is the most perverse: that an inquiry into the quality of an investigation is irrelevant to a criminal trial, that the police service is not liable for its officers’ lies if the prosecutors knew they were lying, or that one cannot reasonably expect police officers to say anything that might undermine their case.

Good luck, in other words, holding police officers accountable for anything, whether in Daveyton, Marikana, Pretoria or Stellenbosch. Truly, it is said, the law can be an ass. Altbeker is the author of

a bestselling account of the Fred van der Vyver criminal trial