Criminal justice system reform must match criminals’ digital advantage

A critical issue highlighted by the Madlanga Commission of Inquiry into Alleged Criminality, Political Interference and Corruption in the Criminal Justice System is the urgent need for South Africa’s criminal justice system to digitally leapfrog into 2026.

Criminals and organised crime syndicates made that leap years ago and continue to exploit technology and gaps in a primarily manual system. They do this with a smile on their face, says Anton du Plessis, CEO of Business Against Crime and a former deputy national director of public prosecutions.

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The Madlanga Commission is forcing the country to confront a deeply uncomfortable reality.

Institutions responsible for enforcing the law and protecting South Africans have made themselves vulnerable to criminal infiltration, political interference and internal dysfunction.

Criminals must realise they “cannot game the system anymore”, Du Plessis said during the monthly Espresso Briefs, hosted by Nortons Inc, a boutique firm of lawyers and economic specialists.

During the discussion, he also said commissions of inquiries are not the cure. “They are the X-ray, and what we need now is treatment in the form of prosecutions, disciplinary action and real institutional reform.”

Window of opportunity

Reform must be measured not by promises, but by cases built, assets recovered, witnesses protected and criminals convicted.

The Madlanga Commission must be the “Nugent moment” for the criminal justice system.

The Nugent Commission of Inquiry investigated the governance and tax administration of the South African Revenue Service (Sars) during the state capture era. It made 26 practical recommendations that were mostly adhered to by former commissioner Edward Kieswetter and his leadership team.

“This is a once-in-a-lifetime opportunity to drive the reform through, but the window will not stay open for long. There is an extreme sense of urgency.”

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Kieswetter identified the “rotten apples” within the organisation and pursued them aggressively through criminal investigations and prosecutions, as well as suspension and labour processes.

“You cannot reform an institution when the people wanting to block reform hold the levers or power,” Du Plessis remarked.

Another prerequisite for meaningful reform, he argued, is recognising the important and transformative role of technology.

“Kieswetter harnessed the technological advancements and communicated smartly about it. The message was clear: there is no more hiding – the system is watching you.”

Practical mechanisms for change

Anthony Norton, managing director of Nortons Inc, referred to a proposal by David Lewis, founding executive director of Corruption Watch, that all senior police officers should reapply for their positions.

He acknowledged that the suggestion may seem controversial.

However, given the evidence presented before the Madlanga Commission, he argued that it no longer appears so contentious. Norton asked whether a complete overhaul of the senior leadership of the South African Police Service (SAPS) is now necessary.

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Du Plessis mentioned the 70-20-10 principle, where 70% of people are hardworking and committed, 20% are sitting on the fence where factional politics happens, and only 10% are truly rotten.

It is that 10%, he said, that must be removed.

Other more practical mechanisms are extensive vetting of senior officers such as compulsory lifestyle audits, in-depth financial disclosures and conflict of interest checks.

Norton said these measures amount to the root-and-branch reforms needed in the criminal justice system. “These are baseline initiatives that should be implemented immediately,” he added.

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According to Du Plessis, there is a need to dispel the fear that the problem is too big.

The approach must be targeted. It must also be prosecution-led, with a small team of prosecutors with leading investigators under one command structure and preferably in one building and supported by dedicated courts.

He also called for long-overdue amendments to the National Prosecuting Authority (NPA) Act to give the NPA director the powers they need.

“The Director of Public Prosecutions is the least powerful powerful person in the country,” he said.

Du Plessis added that the Asset Forfeiture Unit must be able to work in parallel. The most effective way to prevent Stalingrad tactics, he argued, is to move swiftly to seize the proceeds of crime.

Modernisation and digital evidence

Police station interfaces, digital evidence units, and the use and analysis of data must be modernised.

The private sector has “terabytes of data” that can legally be shared with the state.

Part of the transformation is building forensic and cyber skills pipelines – seconding specialists, training investigators and prosecutors, enabling forensic accounting and blockchain tracing and cybercrime procurement analytics.

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Du Plessis further said that the private sector has a vital role to play in supporting witnesses and whistleblowers.

This support extends beyond funding independent whistleblower programmes, legal advice and trauma counselling but also offering support in terms of re-employability.

“The reality in SA is that whistleblowing is an extremely dangerous place to be, and especially if you are going to transition into a witness,” he said.

“We have to reduce the need for whistleblowers to testify in court, especially in complex organised crime cases. The best way to do it is to enhance the state’s ability to engage with digital evidence.”

Du Plessis added that the country cannot prosecute its way out of organised crime and corruption alone.

“We need a much stronger focus on prevention and upstream interventions,” he said.