The justice system is sometimes compared to a crocodile, snapping its powerful jaws at criminals and swallowing those it can. The theory goes that even if a crocodile lies around in the sun for hours and may appear slow and lazy, find yourself too close to its razor-sharp teeth and you’re lunch.
But the more high-profile court cases I cover, the more concerned I grow about this creature (this crucial pillar of South Africa’s democracy). The more I watch cases fall apart senselessly, the more convinced I grow that politicians have smashed in too many teeth and have beaten the judicial crocodile into a state of confused or scared paralysis.
Sometimes it hides in the water instead of pouncing and sometimes it shreds to pieces those that may not deserve such devastation. In other words, it’s become unreliable and unpredictable, which is the exact opposite of its promise to prosecute without fear or favour.
The recent sentencing of self-confessed rhino smuggler Chumlong Lemtongthai is an example of an erratic court decision. The Kempton Park Magistrate’s Court handed Lemtongthai a crushing 40 year sentence for using fake trophy hunters to exploit a loophole in the permit system. Some 26 rhino were hunted and their horns exported. After more than a year of court appearances and botched plea bargains, Lemtongthai eventually pleaded guilty to around 50 charges and took the fall for everyone else who may have been involved.
There’s no doubt he deserves to go to jail for a long time. There is no doubt that the public would be outraged if Lemtongthai got off with a fine or a light sentence. He appears to be a top lieutenant (second in command) in a global criminal syndicate. But sending a man to jail for 40 years for this kind of crime is unprecedented and will almost certainly be undone during an appeal.
The sentence is twice as long as that which awaits a murderer or rapist. The magistrate found that Lemtongthai’s crimes “almost amounts to fraud”, which itself carries a 15 year jail term. Not a 40 year one.
This week, a North West mother was sentenced to 12 years in jail for murdering her five children. In 2009, a magistrate who loves to use the crocodile analogy, Renier Boshoff (from the Alexandra Magistrate’s Court) gave 40 years to the leader of the notorious Sandton Knife Gang, William “Big Spender” Lehase.
Lehase and his gang terrorized more than a dozen families, breaking into their homes in the dead of night and robbing them. In one attack a man was stabbed 17 times.
That should offer a bit of context: a kingpin of a gang that robbed more than 12 houses and butchered its victims received the same sentence as Lemtongthai, who saw a lucrative loophole in the paperwork and took it.
Again, I stress, Lemtongthai is a senior member of a syndicate which exploits what magistrate Prince Manyathi rightfully referred to as the “pride of Africa”. A message needed to be sent out that will make future criminals think twice. It’s the only way to smash these syndicates. But the judiciary must be a slow and steady battleship, not a sail boat bouncing in the wind of public sentiment.
A few days before the Lemtongthai judgment, Minister of Environmental Affairs Edna Molewa called for him to be punished harshly. In his judgment, magistrate Manyathi often got personal, saying he didn’t want his grandchildren to live in a country where rhino no longer exist. Many of us would share this sentiment. He spoke about how many rhino have been killed and how much public outcry there has been. Did he bow to political and popular pressure? Perhaps.
In my opinion, it would have been better for Lemtongthai to receive a lesser sentence, but for his co-accused to stand trial. In taking his plea, the state dropped all charges against five others. Amongst them was Marnus Steyl, the game farm owner who facilitated the hunts. There were two other Thai nationals (allegedly lower down the food chain from Lemtongthai) and two field guides who helped with the hunts.
There was no explanation as to why all five were set free. The witnesses (three Thai women who were hired to pose as hunters) were literally outside court, ready to take the stand. Sars had spent months, if not years, piecing together a comprehensive case against all those concerned. A man who had been initially arrested was offered a deal and was also ready to testify. But Lemtongthai claimed he acted alone and none of the others knew anything about the scam.
The Democratic Alliance has raised the matter in parliament in a bid to clarify why the axe fell only on the neck of Lemtongthai, while those associated with him can now pick up the pieces and possibly start again.
We are told that once a senior member of a syndicate takes all the blame, it becomes difficult to prosecute the others. But with the amount of evidence available (which includes a dramatic “inside a hunt” video now in the public domain) this should have been a lengthy trial instead of a plea and an unreasonable sentence.
The past few months have not been kind to the National Prosecuting Authority (NPA). Zunaid Moti, a controversial millionaire businessman, managed to escape prosecution for attempted murder and robbery.
He was in the dock with almost 20 others, but his lawyers managed to get the case struck off the court roll after the state announced it was not ready to proceed with the trial. A spectacular amount of investigation was flushed down the toilet and the public was robbed of an opportunity to know the truth. Sure, Moti had the best lawyers in the country and the state prosecutor may have been outgunned, but that’s no excuse.
At the same time, and after a long inquest, shadowy police crime intelligence boss Richard Mdluli escaped being prosecuted for murder. He now wants his job back. The court found there was not enough evidence to prosecute Mdluli for the crime, and that’s fair enough. But the questions that will now hang over him and his position (one of the most important in the police service) will do an untold amount of damage.
Look at the state’s attempts to deport or convict Radovan Krejcir. The man arrived in South Africa on a fake passport, wearing a disguise and trying to outrun an Interpol Red Notice. And still, he paid top Dollar for top lawyers and beat the system. More recently he beat a robbery charge. Whether he’s a saint or the Godfather, the point is that our justice system has failed to prosecute him properly or at the very least clear the air around him.
Disgraced estate agent, Wendy Mechanik, pleaded guilty to 90 counts of theft (Lemtongthai pleaded guilty to around 50) worth an estimated R27-million. She received a fine of R1.5-million and some correctional supervision. Her sentence has sparked confusion and outrage, and quite rightly so. It also stands in sharp contrast to that handed down to Lemtongthai.
Rogues like Tony Yengeni, Schabir Shaik and Jackie Selebi were prosecuted and convicted, but worked the system. Yengeni served 20 weeks of a four year sentence. Shaik lay in hospital for around two years and was then released. Selebi seems to be genuinely sick. While these men represent that prosecutions can and do happen, the outcome of their cases make them bittersweet.
To get Selebi behind bars meant letting cold-blooded hitmen walk free. To date, no one has been sent to jail for the murder of mining magnate Brett Kebble.
Despite Shaik’s conviction, the man he was found guilty of bribing, President Jacob Zuma, has not had his day in court. South Africans have watched this terrible legal soapie play out over seven years (since Shaik’s conviction).
Yengeni now runs the ANC’s political school.
Yes, there are brilliant and passionate prosecutors, some of whom win international awards for daring to take on a country’s police chief. Yes, some cases are shining examples of how criminals should be prosecuted. Yes, the courts are not the rubber stamps they were back in the dark days of Apartheid.
But what we need are permanent appointments in key positions (particularly in the NPA). We need strong, independent leaders who don’t owe anyone any political favours. We need cases to go all the way, so that allegations can be replaced with facts. Most importantly, we need to get some faith back in the system and its ability to prosecute high-profile cases. Lemtongthai’s conviction is a victory in the fight against rhino poachers but his sentencing is deeply flawed, possibly due to political interference or pressure. The release of his co-accused must be explained.
Beat a crocodile enough, and he will stop biting.
What South Africa needs is for this predator to go after the tough prey, not just the small creatures that wonder into its open mouth and are too weak or poor (or both) to fight back.
Alex Eliseev is an Eyewitness News Reporter. Follow him on Twitter @AlexEliseev.