“It is inconceivable that 29 years after this section [of the Drugs and Drug Trafficking Act] was declared unconstitutional, it would still find application in a South African court,” Acting Deputy Judge President of Mpumalanga Takalani Ratshibvumo said in a recent ruling.

He ordered that the judgment be brought to the attention of the Chief Magistrate “to help identify areas in need of training and refresher courses”.

He also ordered court managers in the district to find out why it had taken four months to respond to queries from the review court and to report back to the High Court.

Celucolo Michael Mkhonza was convicted by the unnamed acting magistrate in the Mayflower Magistrate’s Court of dealing in drugs in May 2023. He was sentenced to three-years imprisonment, wholly suspended, and a fine of R5 000, alternatively 24 months in jail.

In September 2023, the matter came before the High Court in an automatic review. Queries were sent to the trial magistrate who only responded to them in February 2024.

Judge Ratshibvumo said from the record of the proceedings it was clear Mkhonza had pleaded guilty to being in possession of 3.26 kg of dagga.

Mkhonza had denied that he was “dealing”, saying that someone had given it to him to take to another person.

The magistrate, in handing down judgment, commented that although Mkhonza had “not directly admitted that he was dealing in drugs”, the presumption in the Act was “very clear that the weight of dagga that he was carrying is presumed that he was dealing in drugs”.

The magistrate had been asked to explain how he had come to this conclusion.

In his explanation, he said he had only now realised that that section of the Act, which deemed that a person in possession of drugs over a certain amount was guilty of dealing, had been declared unconstitutional.

Judge Ratshibvumo said almost three decades ago the Constitutional Court, in 1995, had ruled that section unconstitutional and of “no force and effect” because it imposed a “reverse onus of proof” on accused people caught with drugs, contrary to their fair trial rights.

The judge said it was only right that Mkhonza’s conviction and sentence be set aside.

“This may however be too little comfort for the accused who may have suffered substantial injustice at this stage,” he said, noting that while Mkhonza had been given a wholly suspended sentence, it was not known if he had paid the additional fine, or had begun serving the 24-month sentence attached to that.

Regarding the excessive delay in the provision of reasons by the magistrate, Judge Ratshibvumo said the magistrate had indicated that he had only received the record from the review court four months after it had been dispatched from the High Court.

“With the advent of technology, requesting and advancing reasons from the trial court should be possible within 24 or 48 hours by means of email communication. Presenting a case for review after the accused has served the sentence, defeats the whole purpose of review.

“It is the duty of all officers involved within the Department of Justice and Constitutional Development and the Office of the Chief Justice to give effect to the legislative provision and the court directors meant to protect an accused’s rights.”

He directed that court managers must compile reports within 30 days identifying the source of delay and indicating steps taken to avoid similar delays in future.

Mbekezeli Benjamin of Judges Matter said it was troubling that the magistrate had not known the law.

“It is a basic step in the legal research process to check if the law relied upon is still good law. It is notable that once the concerns were raised with the magistrate, he conceded his error and asked the review judge to correct it. We support Judge Ratshibvumo’s order that the Chief Magistrate identify areas where refresher training might be needed,” he said.

This article has been reposted with permission from GroundUp, and the original article can be found here.

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South Africa’s performance on Transparency International’s Corruption Perceptions Index declined from 2009-2018 under Jacob Zuma’s presidency (see chart). There was a slight improvement after measures to bring accountability for corruption, such as the Zondo Commission. Recently, there has again been a downturn – reflecting public perceptions that efforts are faltering.

One reason major corruption cases are hard to prosecute successfully is that corruption is often perpetrated by the most powerful people in society, who are also responsible for upholding the rule of law. According to Dr Abiola Makinwa, an expert on the United Nations’ Financial Accountability, Transparency and Integrity panel: ‘The crimes … that wreak the most havoc on society become the most susceptible to a lack of political will to prosecute.’

There are also problems inherent to the legal system that make serious corruption uniquely difficult to prosecute, even for well-resourced authorities. Jonathan Benton, former head of financial crime at New Scotland Yard who led the United Kingdom’s response to tackling high-level corruption, told the author that ‘the deck is stacked’ against prosecutors and the accused ‘hold all the cards.’

Criminal justice systems have evolved over centuries to deal with crimes like murder where there is an identifiable victim, available evidence and witnesses to testify. Corruption is less clear cut. It is committed by networks of people who all want to keep their activities secret. This secrecy is frequently enforced with violence, so there are seldom willing witnesses.

Serious corruption is often enabled by teams of professionals who construct layers of cross-border corporate entities to conceal the evidence and proceeds of crime. Criminal justice systems struggle to deal with 21^st-century globalised corruption, where money leaves a country instantly, to be hidden in financial secrecy jurisdictions or the metaverse. Mutual legal assistance procedures for international cooperation in investigations are outdated and slow.

Hong Kong has no right to remain silent in corruption cases; not answering investigators’ questions is a crime

One card in the hands of the accused is money – people and companies implicated in serious corruption can often outmatch law enforcement by hiring more lawyers than the state can afford.

Another card is the right to a fair trial. There are good reasons for the accused’s right to remain silent, but in complex corruption cases, that right is a major obstacle for law enforcement. When an implicated party does not have to put a version on record at an early stage in proceedings, officials go into a case blindfolded. They struggle to prepare, secure proper evidence and interview the right witnesses.

In complex corruption cases, that means prosecutors must plan for all scenarios, resulting in a waste of limited resources, and ineffective prosecutions. This is why, in some jurisdictions like Hong Kong, there is no right to remain silent in corruption cases, and failure to answer investigators’ questions is a criminal offence.

Another card in the hands of the accused is the criminal burden of proof, beyond a reasonable doubt, which is an extremely difficult threshold to meet in complex corruption cases. Anti-corruption enforcement that relies on a lower burden of proof – a balance of probabilities – tends to have a better track record in court.

In South Africa, civil action against corruption has been more effective than criminal litigation. The Special Investigating Unit is a government agency that recovers financial losses suffered by the state due to corruption. It has an impressive track record of court victories ordering companies to return ill-gotten gains.

In South Africa, civil action against corruption has been more effective than criminal litigation

The Asset Forfeiture Unit in the National Prosecuting Authority (NPA) also harnesses the benefit of civil litigation to reclaim the proceeds of crime. In state capture cases, it has frozen R14 billion and recovered R11 billion.

Civil society organisations have brought other civil actions. The Organisation Undoing Tax Abuse creatively used the Companies Act to have Dudu Myeni, the former South African Airways board chair implicated in state capture, declared a delinquent director and barred from future directorships.

Corruption isn’t an administrative offence in South Africa, unlike in the United States, where the Securities and Exchange Commission has jurisdiction to enforce administrative liability for corruption. Cases are also decided on a balance of probabilities and are therefore easier to prove – and can result in fines larger than criminal penalties. Anti-corruption enforcement of a similar nature in South Africa would be a worthwhile future reform.

Using non-trial resolutions (NTRs) in corruption cases is another way to address the criminal justice system’s limitations. NTRs are a form of public-private cooperation for corruption provided for in the UN Convention Against Corruption and endorsed by the Organisation for Economic Co-operation and Development Working Group on Bribery.

NTRs typically offer leniency to companies by enabling them to avoid a finding of guilt. Companies must accept responsibility, hand over information about the activities of responsible individuals, pay substantial penalties or reparations, and improve their internal anti-corruption compliance programmes.

South Africa’s Department of Justice and Constitutional Development is considering drafting legislation for NTRs. In the interim, the NPA has developed a simple form of NTR in a policy directive.

Many corrupt activities aren’t criminal – organisational cultures for example can facilitate corruption

International good practice increasingly looks beyond traditional law enforcement to find solutions to corruption. This is because many corrupt activities are not criminal in nature. For example, organisational cultures can facilitate corruption, and bullying discourages people from standing up for their values – but isn’t a crime.

With its focus on punishment, the legal system tends to be backwards-looking – it rarely looks ahead to the prevention of future losses. New Institute for Security Studies (ISS) research shows that many successful corruption reforms are home-grown, small-scale, sector-by-sector, institution-by-institution – and focused on prevention.

One example is the Maritime Anti-Corruption Network’s (MACN) achievements in Lagos Harbour in Nigeria. The MACN is a collective action project in the shipping sector. It brings together businesses, civil society, and the government to reduce corruption in ports worldwide. Led by businessman Soji Apampa, members collaborate with government institutions to introduce standard operating procedures in ports.

Real-time transparent reporting by ships’ captains has immediate consequences for officials who solicit a bribe. Sectoral collective action against corruption is an important complementary approach to traditional law enforcement measures.

The ISS study recommends that South Africa use every available tool to tackle the complex problem of corruption. This includes legal reform, strengthening law enforcement institutions, building cultures of integrity in government, and working with civil society and the private sector to drive prevention.

This article has been reposted with permission from ISS Today, and the original article can be found here.

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