Enough just talking about crime


Enough just talking about crime

To truly address the scourge — from organised criminality to home invasions — we need to stop the talk shops and put the ‘system' back into criminal justice, writes JOHANN VAN LOGGERENBERG.

  • 29 March 2024
  • Free Speech
  • 17 min to read
  • article 1 of 16
  • Johann van Loggerenberg

CRIME, in all its manifestations, has become one of the most pressing issues at every level of society. In my business, I regularly meet individuals, businesses and industry representatives who all say pretty much the same thing: this and that type of crime has happened, is still happening, and it's having a devastating impact.

Some businesses have had to scale down, others have even had to close. I doubt I need to elaborate here on the daily media reports of corruption in government and the private sector.

The government has prioritised poverty, unemployment and inequality as the three primary challenges to our young, imperfect constitutional democracy. I believe crime needs to be added, and I believe every South African knows how devastating crime is for its victims and the economy. It is one of the most difficult issues we have to live with.

Over the past few years, I have taken part in many efforts to deal with the crime pandemic. Most of them involved sessions with a combination of senior law enforcement officials, clever academics, social activists and former senior officials. All of these groups have said crime is a problem. All want action. All are prepared to help.

Their emphases may differ — some seek to address corruption in government, others have a specific interest in prosecuting the state capture gang members, tackling organised crime as whole or specific manifestations such as illicit mining, illegal trade in copper and other metals, even the smuggling of chemicals used to manufacture washing powder. They all succinctly state the problem of crime, and all seem to understand how these crimes are perpetrated.

Where the talking sessions usually lose me is when they appear to want to jump to immediate solutions, “special initiatives”, task teams, more talking sessions, drafting of papers and proposals, and when they all seem to want law-enforcement agencies to do “more” and “faster” and “better”. I’m afraid to say that none of this is going to yield any meaningful and sustainable result.

For starters, many of these initiatives operate in isolation. In addition, they all seem to have private-sector funding but it hasn't occurred to them that their funds and efforts would have a greater impact if they were combined. As an example, I asked one such group, seized with the lack of progress in acting on the state capture commission findings, to indicate how many of them had read Raymond Zondo's reports with a view to internalising them; very few hands went up.

I’ve reached a point where I no longer attend such gatherings unless they are output-focused. Instead, I’ve joined my local community policing forum and now spend that time patrolling my sector with fellow citizens keen to be the ears and eyes of our understaffed and under-resourced police station.

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A proposition

I’d like to propose a concept for consideration, particularly in response to comments attributed to representatives and leaders of some of these noble efforts when it comes to the state of the criminal justice system.

I’ve spent most of my productive adult life in law enforcement. I’ve not only studied and attended courses on how to deal with crime, but I’ve practised what I've learnt. I was moderately successful in doing so — from taking down vehicle accident reports and investigating them, to eventually investigating more complex crimes, to more advanced law-enforcement techniques and ultimately building units and capacity within the government aimed at addressing crime all over the country.

I’ve also been a victim of several crimes, and since leaving the government I've had the opportunity to assist victims of crimes in various guises. In my 20s, I lived among criminals, infiltrating a range of diverse syndicated groups to understand how they come into being and operate, and how best to shut them down. So I consider myself somewhat knowledgeable on the topic. And this is why I’ve always stated that I believe the following should be borne in mind at all times when we try to deal with crime of any kind.

Stimulus and response

As a child, my mother taught me about the most elementary aspect of communication and human interaction — stimulus and response.

Someone does something or says something and we decide whether to respond, and if so how. Stimulus, response. The response becomes a new stimulus which may elicit a response. And so it goes back and forth. As humans, we tend to be transactional and reactive in instances where a stimulus affects us negatively or positively.

Now take the topic at hand: crime. Or think of the state capture events. Pick almost any sub-sector in the economy and I’ll be able to demonstrate how individuals within it are unhappy about the lack of policing and law enforcement and able to show how it is affecting their businesses.

The same goes for virtually every citizen. Each of us has been a victim at least once: the stimulus. In most cases, we respond from a position of trauma. We want justice. We demand action. We expect our criminal justice system to function optimally and bring the perpetrators to book, only to mostly be disappointed and dissatisfied. This compounds the crime's economic and social effects on us and we become jaded and cynical. In some cases, communities have gone so far as to take the law into their own hands, with disastrous consequences.

This transactional way of responding is how we tend to approach difficulties. Something disturbs us, harms us or causes fear, and we want immediate action from the police and prosecutors.  Much of what I’ve come across in policing (and law enforcement as a whole) is indicative of this. 

Crime is a societal defect, and so is the lack of law enforcement

Trends are recurring occurrences. When a trend is a bad trend, such as crime or a type of crime, it is indicative of a systemic problem. The same applies to the notion of prosecutions. Few prosecutions of what may be considered a significant type of crime — corruption, for example — is also a trend. 

In engineering and manufacturing terms, the concept of systems is well-known. If a car rolls off the production line with a loose steering wheel  and a customer brings it back within the warranty period, it will be repaired. In a well-run factory, this rarely happens. This sort of response is sometimes known as a disposition response. It is a fluke, it is fixed, and the customer is happy.

However, if almost every car coming off the production line has the same defect, the solution will be within the production line. Engineers will check the whole process, identify the systemic problem and fix it. This is known as corrective action.

Crime in general, not just corruption, has become normalised in our society. We tend to report break-ins, thefts and robberies mainly for insurance purposes, not because we have an expectation that the perpetrators will be caught and prosecuted. Many crimes involving gender-based violence are not even reported.

The same can be said of people who witness crimes or come across evidence of it. Whistleblowers are a rarity. Many see crimes and look away because the consequences and hassles of having to report them to the authorities are so taxing, so pointless and imposing. Instead we learn to live with crime. We normalise the abnormal. And we become increasingly frustrated, fearful and despondent in the process. 

Crime is a systemic defect. It manifests everywhere in society. The typical expected response is law enforcement, and the part of government that combats it is supposed to be a system, known as the criminal justice system. It is populated by civil servants, funded by taxpayers and foreign loans paid for by taxpayers, and they require tools, offices, skills and the means to do their work. And herein lies the challenge.

It isn’t a system

This system isn’t operating as a system. The people within it don’t execute their duties systemically. The tools and means available to them are insufficient for them to meet their statutory mandate and skills are in short supply across the board.

Skilled individuals are overworked and overloaded, or they have left the civil service, and the rest just tick over. Every now and then, when a sensational crime occurs, there might be a bit of energy and effort, but these are the proverbial flashes in the pan. There are roadblocks now and then; high-visibility exercises, usually accompanied by strong media statements and the presence of journalists, happen sporadically; and sometimes, matters get prosecuted. But they’re few and far between. The system is not achieving what is required.

Elementary measuring, reviewing, planning, strategising and funding for all parts of the criminal justice system is approached haphazardly and in silos, with no logic or strategy underpinning it. Take the ratio of approximately 118,000 police officials to about 3,000 prosecutors and “hundreds” of courts. Nowhere can one easily find the total number of judges and magistrates in our country, less so the total number of scribes, court clerks and other supporting staff necessary to see a prosecution through speedily. This is  unsustainable. The “factory” doesn’t make sense. It operates in pieces. Money available to employ more police officials takes no account of how many prosecutors are required to handle the arrests they might make. The same goes for judges and magistrates, never mind whether there are enough courts.

The way the parts are measured, funded, managed and expected to function not only achieves counterproductivity but rewards it. I don’t need to draw the picture. It is obvious. Backlogs and delays are the predictable result. One part undermines the other, no matter how hard the people in their respective silos try to work.

Different strokes for different folks

The way law enforcement and criminal justice functions as a system is often determined by personalities who are naturally inclined towards transactional and reactive problem-solving. If they’re good cops, prosecutors or presiding officers, that is. This is mainly because investigating and prosecuting a crime and presenting evidence to a criminal court requires detailed, forensic, evidence-based disposition responses.

Good law enforcers are born, not made. The same can be said of magistrates and judges. Not to be disparaging of them, but they’re usually not strategic problem-solvers when it comes to system thinking. Their trade and craft doesn’t expect that of them. One wouldn’t ordinarily appoint a brain surgeon to manage a general hospital because surgeons are better at operating on brains than managing systems. They’re typically dispositive solvers. If people who become police officials, prosecutors, magistrates and judges were naturally systemically inclined and instinctively looked at things from a corrective perspective, they’d probably have become entrepreneurs, quality controllers, strategists, financial planners, economists or engineers.

The dilemma is that you need both. You need good law enforcers and also good planners and problem-solvers at a systemic level. And they need to function in an integrated fashion as a single system.

So what?

Which brings me back to the concerns of all South Africans: the failure to address crime. It is a systemic problem that requires a systemic solution. Yes, with good law enforcement, “task teams”, “special initiatives” and a bit of luck, some culprits can be caught and convicted. But sporadic successes won’t solve the problem. They are by and large transactionally reactive and selective and certainly unsustainable. Someone else will come and repeat the crimes anyway.

The answers to crime need to be thought through, prioritised, and the realities need to be accepted. The fact is the criminal justice system doesn’t only lack resources, time, skills and capability but a systemic expectation and approach. Victims depend on investigators, investigators depend on prosecutors and prosecutors depend on the courts. They each have their own limitations and they’re simply unable to achieve what they ought to do by law.

Look at the recent Intercape court judgments. On one hand, the police say they lack budget and resources, on the other the courts say they must do their job. It doesn’t solve Intercape’s problems though. To consider the police as first in the value chain is an incorrect approach. The criminals are the starting point. If that shift is made, the approaches begin to change. The same goes for the interplays between the parts of the criminal justice system. They cannot be managed in silos. It is Dark Ages law enforcement.

For decades, I’ve maintained that a systemic approach is the answer. Each initiative I’ve been privy to may contribute something and create a perception of success for a while, but they need to be part of foundational work towards a better systemic solution.

The fundamental answer lies with public/private models and a smarter way of using what is there, flaws and challenges included. It is no different in concept to some people having solar systems, boreholes, private security measures, armed response and private education for their kids.

Security villages, community policing forums and gated communities are all examples of people doing things for themselves when the government can't. In a sense, they take the load off the government and free up its resources.

Another example: look at Johannesburg’s water problems. The solutions are doing some things for ourselves, leveraging  what exists in our community and the private sector, accepting that the government is unable to fix things at the systemic level and finding ways to force-multiply the bits the government can do.

If the criminal justice system's issues aren’t approached systemically, we will be talking about the latest manifestation of crime forever. The government must look at the “factory” as a whole. Only then can it systemically introduce solutions like work-loading, quality control, staffing ratios, skills development, performance reviews, budgeting, strategic planning and specialisations to satisfy everyone in South Africa and not only those lucky enough to attract attention and energy.

The legal framework provides for many solutions. I will not delve into these too much, save to give some obvious examples to make a point. We have more private legal practitioners than most  people realise. Prosecutions can be outsourced to them. They can also act as judges, presiding officers, mediators and magistrates. Police reservists and community policing forums can be better used, managed and leveraged, and the large private security and investigating community can be coopted in a far more collaborative manner than is currently the case. The same can be said for technological solutions that can be bought off the shelf. Case-selection and coverage models aren’t new ideas in law enforcement but they aren’t visible in most parts of our criminal justice system. 

Statutory laws provide for all of this, and our common law and jurisprudence has repeatedly affirmed that these tools are available to be used precisely because we are a developing state. As far back as 2001, leading textbook experts emphasised that it was foreseen that the state would not have the capacity to investigate all crimes for a long time due to capacity constraints; especially in cases of a commercial nature, the outsourcing of criminal investigation should increase. The high court, in the matter of the State v Botha,  acknowledged the right of private entities to conduct investigations on behalf of the state. Section 84 of the Public Finance Management Act and National Treasury regulations require  state departments and public entities to investigate allegations of financial misconduct. Once you see it all as a system, the solutions almost instantly begin to emerge.

It has been done before on smaller scales, and this can be duplicated. I was part of such efforts for decades and they were showing fruits until the state capture gang, their sycophants and every other crook it suited came along. It is a question of “width” (being universally seen and felt), “depth” (demonstrating that consequences will always follow for criminals) and “leverage” (tactical actions that can be combined to amplify and concentrate resources).

We also need to view the “value chain” not from “point of discovery” or “first information of crime” but with crimes as the “input”. Within such a system, specialisation, task teams and high-visibility actions will have a far greater impact. Criminals must know that if they do wrong, they will be discovered, caught, prosecuted and — “Stalingrad tactics” or not —  punished.

Licences will be withdrawn, businesses will lose their registration documents, services will be terminated, crooks will go to jail. This ought to be the norm. Whistleblowers will report crimes because it is the right thing to do, and they will know there will be consequences for the bad guys. Victims will believe that if they report a crime, the perpetrators will be held to account. Insurance premiums will begin to drop, businesses will begin to thrive because smuggling, money laundering and under-valuations will decrease. People will feel free to go for walks with their families or cycle somewhere. The fear of criminals will turn to criminals' fear of the consequences if they get up to no good. This is what is needed in society. To get there, the “factory” must start functioning as a system. We must be less impressed by silo “performance reports”, media statements and publicity stunts and more impressed by how safe we feel and how our economy is thriving because criminality is no longer normal.

Stop the chatter

I’ve attended way too many academically or politically orientated “initiatives” where the groups are too large, the thinking too shallow, preparation and experiential understanding of what is at play too weak and experience in law enforcement limited or too transactional.

We do not have time to pontificate any more.

PS: If you’re not a member of your community policing forum, and not prepared to volunteer an hour or two a week towards assisting your community and police station, why is that? Unfortunately, it is not good enough to campaign for your personal choice of political party every now and again, then vote at election time. No matter who governs, they’ll need a functioning criminal justice system because the entire nation does. If you litter, if you speed, if you fail to submit your tax returns or pay your taxes on time, if you’re not participating in community groups that clean rubbish in your area, or if you buy that “cool drink” when you haven’t timeously renewed your vehicle licence disc, you’re part of the problem, not the solution. Ask yourself how much you really care for your own future and that of the next generation. That would be a start. The answer ought to guide you towards stepping up in troubled times. If not, stop talking about crime and live with it.

♦ VWB ♦

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