Why Cape mobs walked

2014-01-26 14:00

Judges say justice system can’t ignore breakdown of policing in Cape’s poorest areas

At least seven people convicted of mob-justice attacks in the Western Cape avoided jail time last year because judges said they could not ignore the dysfunction in the formal justice system in the province’s poorest communities.

Two unreported judgments of the Western Cape High Court, delivered in April and in June last year, saw the court hand down sentences of correctional supervision and suspended imprisonment to men convicted of serious charges related to mob justice, including assault and kidnapping.

Both judgments have been submitted as evidence to the Khayelitsha Commission of Inquiry, which this week began its investigation into the breakdown of policing in the area.

In the first judgment, Judge Ashley Binns-Ward said it was necessary to acknowledge that crimes committed in the context of vigilantism “will often be different from the same act perpetrated out of greed or delinquency”.

“While their gravity should not be seen as being diminished on that account, the context does, I think, justify consideration of a different response when it comes to sentencing.”

The case involved three men – Thamsanqa Dikqacwi, Thando Abrahams and Luzuko Duma – aged between 27 and 33.

They were convicted of breaking into the homes of men who were purportedly posing as police officers to rob members of the Khayelitsha community.

The men were also convicted of kidnapping and assault of the alleged robbers.

When it came to sentencing, Binns-Ward found that “there is nothing to indicate that the accused committed the crimes for personal gain or out of particular animus [hostility] towards the complainants, who were essentially unknown to them”.

Binns-Ward quoted an academic article which recorded that vigilantes are seen as “upstanding and respectable members of the community and, indeed, see themselves as serving the interests of their community”.

“On reflection, even if wholly unacceptable, this much is understandable in the context of a perception by a community that the formal and constitutionally established criminal justice system is not functioning.”

The judge noted that the accused were all providing for their dependants, holding down stable employment, stayed on the right side of the law and functioning well within society, “albeit a dysfunctional society”.

Binns-Ward ruled that lengthy incarceration risked “returning them to the community damaged and even more problematic persons at the end of the exercise”.

Binns-Ward gave Dikqacwi and Duma seven-year prison sentences, wholly suspended for five years, provided they did not commit any further offence and also that they undergo correctional supervision.

This included house arrest, 625 hours of community service, the payment of fines of R2?500 to the families of victims and seven years’ imprisonment.

He said that incarceration, contrary to providing a deterrent to vigilantism, risked being conducive to a “greater alienation of the members of such communities from the formal criminal justice system.

“They might see lengthy terms of imprisonment as indications of the system being harsh on those who they see as the ones trying to do something effective about the crime.”

But he stressed that this should not deter courts from imposing sentences of imprisonment where proper.

The second judgment, handed down two months later in June, took its cue from the Binns-Ward ruling.

The case involved two men who had apprehended a burglar and handed him to the father of his victim, who then assaulted him.

The burglar died from his injuries.

Acting Judge Roseline Nyman said: “It was necessary to take into account that this offence is an example of one of the many acts of vigilantism that occurs in Khayelitsha on a regular basis.

“It seems that many members of the community have lost confidence in the police.

“This problem is so serious that the premier of the Western Cape has appointed a commission of inquiry to investigate the state of policing.”

After closely examining the circumstances of all the accused, Nyman sentenced the father, Mzwanele Mvabaza, to five years’ imprisonment, suspended for four years, and three years’ correctional supervision.

The two men convicted of the kidnapping – Pule Hendricks and Mziyanda Mqumbisa – were sentenced to four years’ imprisonment, also suspended for five years and three years’ correctional supervision.

Another suspect convicted of being part of the assault was sentenced to six months’ imprisonment, suspended for two years, on similar corrective supervision conditions.

This judgment also cites a City Press report that initially revealed the shocking extent of mob justice in Khayelitsha.

It stated that about one-fifth of the 360 murders reported in the 2011/12 crime statistics review period were linked to mob justice.

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