Many years ago a friend of mine was gang-raped in Soweto. She insisted she would not open a case against her perpetrators, and when asked why she detailed how the law had failed her before.
The gang-rape incident was not her first experience with sexual violence as she had been raped before. She had opened a case and gone through a year of a gruelling trial at the Protea magistrate’s court in Soweto, but in the end her perpetrator was acquitted.
The experience destroyed her faith in the criminal justice system. All these years later she is adamant she would never take any issue to court because, she says: “The courts are where justice goes to die.”
I understood what she meant a year ago when Pastor Timothy Omotoso and his two co-accused were acquitted of all 32 criminal charges, including rape, human trafficking, and racketeering.
Like many South Africans, I followed the case with keen interest and remember the horrific testimonies of witnesses who detailed their abuse at the hands of the charismatic pastor.
Like many South Africans, I remember the day when judge Irma Schoeman of the Gqeberha High Court acquitted the men, highlighting significant errors and improper conduct by the original state prosecutors which ultimately compromised the integrity of the state’s case.
The conviction rate for sexual offenders is very low in our country. No case, perhaps with the exception of the Jacob Zuma rape trial in 2006, was as acute a reminder of how the criminal justice system fails survivors of sexual abuse as the Omotoso case.
Sexual crimes are not the only ones with low conviction rates. Many violent crime cases are withdrawn by prosecutors or end in acquittals, and many murder investigations fail to secure an arrested suspect.
The murder detection rate, which measures the proportion of reported murder cases where at least one suspect is charged, has dropped significantly in recent years and now is at less than 10%.
The criminal justice system faces a “sieve effect”, a phenomenon in criminal justice where a substantially larger volume of crimes is reported than ultimately results in convictions. The sieve effect is an intentional, inherent mechanism in democratic justice systems.
Its purpose is to ensure the state only prosecutes and incarcerates individuals when a prima facie case can be proven beyond a reasonable doubt.
While the sieve effect is theoretically necessary, when it is excessive it indicates a failing criminal justice system. When the filtering happens too early, therefore — a majority of cases are dropped because of poorly trained detectives, undertrained prosecutors, or victim distrust in the system — it leads to impunity.
This erodes public confidence and makes communities feel the justice system provides no deterrent. There is no clearer illustration of this than the high-profile money laundering and extortion case against taxi boss and alleged criminal mastermind Joe “Ferrari” Sibanyoni, which was struck off the roll by the Kwaggafontein magistrate’s court.
This was after the prosecutor did not appear at a scheduled bail hearing, citing fears for his life after receiving death threats while on his way to court.
A case that could have lifted the veil on the destructive work of the construction mafia, taxi violence, extortion and many other horrific crimes came to a grinding halt under troubling circumstances.
For me, the crucial part of this story is not only that Sibanyoni did not have his day in court, nor is it the subsequent filing of appeal papers by the National Prosecuting Authority.
The story that needs reflection is that a prosecutor could not trust the state to protect him against death threats. If a prosecutor cannot trust the law he is sworn to uphold and the courts he serves, what chance does the ordinary person have?
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