[CORRECTION] Gauteng Judge President raises concerns on bail appeals, urges collective action

Dunstan Mlambo has questioned how some bail appeal applications are being dealt with in South African courts.

Gavel. Picture: Saps

Editor's Note: On September 30 2016, Gauteng Judge President Dunstan Mlambo addressed the Africa Prosecutors Association's three-day anti-corruption summit. EWN reported on this story, but our story created the incorrect impression that the Judge President suggested that judges are corrupt and may be involved in taking bribes and kickbacks. Some of the quotes attributed to the Judge President were also taken out of context and did not accurately reflect his comments.

EWN deeply regrets the error and apologises unreservedly to the Judge President and the office of the Chief Justice. Below is an accurate reflection of what the Judge President said at the conference:

Gauteng Judge President Dunstan Mlambo has raised concerns around how some bail appeal applications are being dealt with in South African courts, saying collective effort is needed by the judiciary, police and prosecutors to ensure criminals don't evade the law.

Mlambo spoke at the Africa Prosecutors Association's three-day anti-corruption conference in Pretoria in late September.

Attended by prosecuting bodies from across the continent, the gathering was aimed at sharing best practice among prosecuting authorities in the fight against corruption.

During his address, Mlambo spoke at length about what he termed "suspect bail orders", saying a long list of such issues had been brought to his attention. These mostly related either to apparent negligence by judicial officers, falsified court orders or, in some cases, suspect activity by court officials. He said that where such activity is identified, swift action should be taken.

"We must prioritise corrupt offences in justice institutions. If we do this, the people involved will be arrested."

The judge highlighted one instance in which an awaiting-trial prisoner in a high-profile matter had initially been denied bail in a regional court - only to be granted bail by a different judicial officer two months later.

"I don't understand how your people in prosecutions didn't pick this up," Mlambo told delegates. "This is a court [in Gauteng] where someone tries to get bail before one judicial officer and bail is refused. Two months later, instead of a bail appeal to the high court, a fresh application is instituted before another judicial officer. And what happens? Bail is granted."

Mlambo said when he was made aware of the issue he decided to deal with it head-on, as he felt this was his responsibility as the province's Judge President.

"Judicial officers came to speak to me on condition of anonymity, because they were scared for their lives, to say, 'Yes, there are our colleagues who are doing these things.' Now, it's a touchy subject when we start to say judicial officers are involved in corruption, but we shouldn't be shy to talk about it because we need to find ways of dealing with it."

Mlambo said that, in most instances, cases like this would come to the high court by way of an appeal against a decision by a lower court to deny bail to a suspect.

"For some reason, judges then grant bail. And it's an issue I have raised with my judges, to say, 'On which planet do you live, guys? This is a problem'."

Mlambo told delegates that the problem of falsified court orders was at one point rife in Gauteng courts, but that interventions, including the watermarking of these documents, had addressed it and he believed this had "stemmed the tide".

"I like to believe that my message is getting through, but you still have one or two [instances like this] that happen. I have warned my judges that one of [them] will be caught up in an investigation that could become disastrous for [their] careers and [their] lives.

"I don't want to say that there is no corruption in our ranks. When you look at the evidence presented to you, it comes to me as head of the court. I see these things and I say, I can't keep quiet."

He said in some instances, appeals against convictions or sentences were filed but not prosecuted, meaning suspects would stay out of jail while their cases "died a natural death".

"Cases simply sit on our rolls and then they go away. That serves criminal syndicates; they wait for witnesses to die or they kill them off. By that time the matter is ready to come to trial, there's no case."

Mlambo is not just content to explain the problem; it is clear that he wants to tackle it and to make sure that proper solutions are found. While he is a judge who is expected to make findings only on matters brought before him, he wishes to be assertive on this issue.

"As a relevant stakeholder, there is nothing wrong with the leadership of the prosecution engaging with us as the leadership of the judiciary to understand and [agree] that we have a problem, and a collective effort is needed to combat it. I can't sit back and say that it's the police and prosecutors' issue, so they must deal with this - never. That's self-defeatist.

"I'm prepared, as part of the collective, to fight this scourge to make sure that we do not lose the battle."

But this is also a difficult issue for Mlambo. He could risk being accused of being too close to prosecuting authorities if he were to approach them with an offer to work together. Nevertheless, he wants to make sure that justice is done.

"I'm on record as having said that I will not allow my courts to be used to rubber-stamp corruption and I will live up to that. This is an open invitation to say that if there are aspects on which the prosecution would like to collaborate with me as head of the court, my doors are open."