Tensions between government and judiciary play out

Representative of the tensions between the judiciary and government, Justice Mogoeng and Minister Mbalula’s recent comments to police seem diametrically opposed. 

Chief Justice Mogoeng Mogoeng has appealed to police to stop arresting people “willy-nilly” before investigations are done, saying this causes a clogged court system.

Justice Mogoeng was speaking at a media briefing in Johannesburg on Friday after a meeting with the Heads of the Superior Courts in which matters of the judiciary were discussed.

In an appeal to the police Mogoeng said, “Please, where possible, refrain from effecting arrests in circumstances where you have no reason to doubt that a person will make himself or herself available. The court system is being clogged resulting in untold backlogs”.

Mogoeng added, “instead of the magistrate dealing with cases that are trial ready, it is these cases relating to arrests that could have been avoided.”

Mogoeng admitted, however, that some arrests cannot and should not be delayed due the seriousness of the crime.

Meanwhile, Minister of Police Fikile Mbalula has called on the police’s Tactical Response Team (TRT) to be harsher on criminals.

Speaking during the redeployment of the TRT, also known as “AmaBerete” in Gauteng on the same day Justice Mogoeng gave his media briefing, a video went viral of Mbalula calling on police to 'crush [criminals’] balls' and make them 'pee and drink their urine'.

“Even if you do not have a warrant of arrest‚ slap them. Break the law progressively and let me worry about court cases” Mbalula continued. He was met with loud cheers from policemen.

Representative of the tensions between the judiciary and government, Justice Mogoeng and Minister Mbalula’s comments seem diametrically opposed.

Wilna Lambley, Regional Operations Executive of Legal Aid South Africa, speaking to the Wits Justice Project about government’s pending review of SA's bail laws said that one of the reasons for the court backlogs cases as well as over-populated prisons is SAPS’ “practice of early arrests”.

Explaining why early arrests can cause problems in the courts and in prisons, Lambley says that if, for example, Person A lays a charge of theft against Person B, the police will immediately arrest Person B based on this one statement without any further investigation.

“He is arrested, bail is denied and one year later, AFTER the police have finalised their investigation, they realise there is no case and the matter is withdrawn in court. I believe this practice impacts heavily on the constitutional rights of people.” She said.

According to the 2015/2016 South African Police Service’s (SAPS) Annual Report, incidents leading to civil claims “increased by 67,03% (16 498 new incidents leading to civil claims were lodged against the SAPS compared to 9 877 during the same period in 2014/2015).”

SAPS attribute this increase to “unlawful arrests and detentions, collisions, assaults and shooting incidents.”

Justice Mogoeng also touched on the issue of political attacks on the judiciary. Over the past few years, judges have been harshly criticised by some politicians. Mogoeng appealed to politicians to think about what they say before criticising the judiciary. However, his words also ring true for Minister Mbalula.

“As a member, you are a role model to many, just reflect before you speak how those who follow and look up to you are going to understand the message that you’re sending through.” Mogoeng pleaded with politicians to make sure their comments are ‘insightful’.

-Azarrah Karrim

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