“Justice must not only be done but must also be seen to be done.” – Lord Hewart, R v Sussex Justices, ex parte McCarthy (1924)
In the esteemed halls of justice, the scales are meant to balance with impartiality and precision. However, recent events have cast a long, disconcerting shadow over South Africa’s commitment to upholding the rule of law.
Timothy Omotoso, a pastor accused of heinous crimes, was released due to prosecutorial missteps by the National Prosecuting Authority (NPA). This release serves as a stark reminder of the systemic fissures that threaten the very foundation of our judicial edifice.
This incident highlights the failings of the prosecutorial system and raises fundamental questions about the role of the NPA, the judiciary, and broader society in ensuring justice is served.
But beyond institutional failures, it compels us to ask: what exactly constitutes justice? Is it the mechanical application of law, the moral vindication of victims, or the deterrence of future crimes? And if justice is perennially out of reach, does the mere pursuit of it suffice?
Systemic Failures in the National Prosecuting Authority
Omotoso’s release is not an isolated anomaly but part of a troubling pattern of incompetence within the NPA. The very institution entrusted with ensuring justice for victims has, time and again, failed them.
This is the same NPA that fumbled the Nulane case, a significant leg of the much-publicised State Capture prosecutions. Here, evidentiary shortcomings and procedural blunders resulted in the acquittal of individuals implicated in corruption of staggering proportions.
Such lapses embolden the malefactors. They also send a demoralising message to the citizenry. The guardians of justice may falter. This leaves victims in the lurch and perpetrators unscathed.
Between 2018 and 2022, the NPA secured convictions in only 6.5% of corruption cases stemming from the State Capture Inquiry, a shocking statistic considering the volume of evidence amassed.
The judiciary itself has expressed frustration with prosecutorial inefficiencies, with former Chief Justice Raymond Zondo lamenting that the failure to secure convictions against high-profile corruption figures threatens the rule of law in South Africa (Zondo Commission Report, 2022).
The implications of these failures are dire. When an entity as crucial as the NPA exhibits a pattern of prosecutorial ineptitude, it signals an erosion of accountability at the highest levels.
South Africa’s legal system, which ought to be a bastion of justice, is instead mired in bureaucratic inefficiencies, incompetence, and at times, outright negligence.
The fact that Omotoso’s case, which centred on allegations of sexual exploitation and predation, collapsed due to prosecutorial mismanagement is indicative of the NPA’s inability to handle high-profile cases with the seriousness they deserve.
Gender-Based Violence and the Failure of the Justice System
The ramifications of prosecutorial failures are particularly egregious in the context of gender-based violence (GBV). South Africa has one of the highest rates of GBV in the world, yet conviction rates remain abysmally low.
The NPA asserts a 75% conviction rate in GBV cases, but experts argue that this figure is misleading, as it disregards the multitude of cases withdrawn due to police inefficiencies, intimidation of victims, or the sheer emotional and financial toll of seeking justice in an unwelcoming system.
A study by the South African Medical Research Council (SAMRC) in 2017 estimated that only 5% to 8% of reported rape cases result in conviction, highlighting a gaping chasm between reported statistics and the lived realities of survivors.
The South African Police Service (SAPS) has been repeatedly castigated for its dereliction in handling GBV cases.
Amnesty International’s 2023 report underscores the urgent need for accountability, citing instances where survivors were subjected to secondary victimisation due to shoddy investigative work and dismissive attitudes from law enforcement officials.
The cases of Popi Qwabe and Bongeka Phungula, two young women raped and murdered in 2017, remain emblematic of this malaise. Their families still await justice years later.
Comparative analysis shows a stark contrast with Sweden. This nation has taken a proactive approach to addressing GBV. It employs specialised prosecutorial units and integrated victim support services.
In Sweden, approximately 15% of reported rapes result in conviction, significantly higher than South Africa’s rates (Swedish Crime Statistics Bureau, 2022). Key to Sweden’s success is the establishment of gender-based violence courts, which expedite cases, provide dedicated prosecutors, and prioritise survivor support, a model South Africa would do well to emulate.
This raises the philosophical dilemma: if the legal system continuously fails survivors, should justice be reimagined beyond courts and sentencing? Can community-led justice, truth commissions, or restorative justice serve as viable alternatives, or does the absence of legal retribution only perpetuate impunity?
The Common Man’s Struggle for Justice
If high-profile cases such as those of Omotoso, the Nulane corruption scandal, and gender-based violence trials fail due to procedural and substantive issues, what does this mean for the common citizen seeking justice?
The unresolved case of Senzo Meyiwa, the late football star whose murder remains shrouded in controversy nearly a decade later, epitomises the deep rot in South Africa’s criminal justice system.
The case has been marked by mismanagement, inconsistent witness testimonies, and accusations of prosecutorial incompetence, further undermining public trust in the ability of law enforcement and the NPA to deliver justice.
For the everyday South African who lacks resources, media attention, or legal representation, the barriers to justice are insurmountable. Ordinary citizens often find their cases dismissed due to insufficient investigative efforts, lengthy court backlogs, or simple bureaucratic neglect. A system that fails celebrities and well-publicised cases can only be imagined in its failures towards those whose voices are seldom heard. The truth is grim: if justice cannot be secured for the most visible victims, then for the common man, the walls of justice become nothing more than a mirage.
The Intersection of Law and Society: A Culture of Complicity
However, it is not just institutions that fail victims—communities, too, bear a collective responsibility. The pervasive culture of silence and stigmatisation surrounding cases like GBV often deters survivors from seeking redress, effectively rendering the walls of justice insurmountable. Families hush up incidents, neighbours turn a blind eye, and society at large remains apathetic.
This culture of complicity is further exacerbated by the failure of the state to create an environment where victims feel safe enough to report crimes. Shelters and support organisations, such as the National Shelter Movement of South Africa, have highlighted the strain placed upon them due to systemic failures, emphasising the need for integrated and adequately funded support mechanisms for survivors.
The judicial system must not only focus on punitive measures but also on restorative justice mechanisms that empower victims and provide them with the necessary tools to reintegrate into society without fear.
Legislative and Structural Reforms: A Path Forward
One might ask: where do we go from here? How does a nation reclaim its sense of justice when the very structures meant to uphold it are crumbling under the weight of inefficiency and apathy? If justice remains unattainable, should we redefine its very meaning? Is it merely the outcome of a legal process, or should it encompass the healing, dignity, and empowerment of victims?
In a democracy, the law is only as strong as its enforcement. Without swift and decisive action, South Africa risks becoming a nation where justice exists only as a theoretical concept. This concept is divorced from the lived realities of its people.
Until the NPA can demonstrate a tangible commitment to upholding justice, victims will continue to languish in the shadows, and the promise of a fair and just society will remain an unfulfilled ideal. The walls of justice must not merely house the law. They must ensure that within them, justice is not arbitrary. Justice should not be selective, but a fundamental and inalienable right for all.
Leo N. Maphosa is a distinguished Governance and Risk Compliance Specialist based in Johannesburg. Holding an LLB degree from North West University, Leo has made significant contributions to the fields of law and corporate governance, serving as a Company Secretary for various prominent entities.
The Joburg Reporter 
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