The question that immediately springs to mind after the murder of private security boss Marius van der Merwe, who testified at the Madlanga commission under the alias “Witness D”, is: who watches the watchers?
Van der Merwe’s death, in full view of his wife and two children, is yet another illustration of the deep crisis in South Africa’s criminal justice system — and the enormous, almost impossible task on the shoulders of the illustrious legal minds who constitute the commission.
Van der Merwe, or “Witness D”, testified before the commission in November from a remote location, but not in camera as had been anticipated for other witnesses whose identities needed to be protected to ensure their safety.
The commission abandoned in-camera testimony due to litigation from various media houses — the commission’s work carries enormous public interest, as the crumbling of the criminal justice system affects every South African citizen directly.
Witness D’s identity was revealed after his murder outside his home on Friday night.
It is natural to raise concerns about witness protection and to question whether the commission has done enough to secure its witnesses, but the commission is facing an unprecedented situation.
The commission has to rely on the institutions it is tasked with probing — for links to the criminal underworld and political interference — for various services. The terms of reference of its investigation include the police, crime intelligence, metro police, the Hawks and the Investigating Directorate Against Corruption — the very institutions tasked with crucial responsibilities such as witness protection.
Justice minister Mmamoloko Kubayi may have put her foot in it in a media briefing on Saturday when she declared that the witness was offered protection but had declined it.
His reason was that he owned his own private security company.
Subsequent reports indicated this was not true. However, even if it were true, could he be blamed for turning down protection from the very institutions he gave testimony against?
Witness D’s submission to the commission was short, by commission standards, just 12 pages transcribed word for word. He described in detail the night he was told to dispose of the body of a suspect allegedly involved in a robbery, after the said suspect was tortured and killed by law enforcement officials from the SAPS and the Ekurhuleni Metro Police Department (EMPD), with private security companies in tow.
The instruction was allegedly given to him by a tracksuit-clad EMPD boss, Julius Mkhwanazi, who arrived at the scene after the suspect was killed.
Van der Merwe’s murder was met with shock and strong reaction even from the often docile presidency — President Cyril Ramaphosa described the murder as “heinous”.
“While our law enforcement agencies establish the circumstances leading to this heinous act, I am appalled and saddened by this attack on a former public servant who recently served the cause of justice and integrity by testifying at the Madlanga commission,” he said in a statement.
The Madlanga commission itself issued a statement saying it met Natjoints — which includes the police, the SANDF and the State Security Agency — to enhance the commission’s security operational plan over the next two days.
Still, the question remains: what if the enemy is within?
Even if we pass legislation, if transparency supersedes protection, we will not achieve effective witness protection in this country, and our fight against corruption and organised crime will be compromised.
— Mmamoloko Kubayi, Justice minister
Three other witnesses — Witnesses A, B and C — who testified from remote locations described how their lives had been altered and they were effectively in hiding due to the criminal infiltration of the SAPS and the Hawks.
Kubayi added another dimension in her briefing on Saturday — that perhaps the commission should revisit in camera hearings for sensitive witnesses.
“We were concerned that the public and the media were able to identify Mr van der Merwe as Witness D. I did not know; the commissioners did not know who Witness D was. Only those who worked directly to obtain the statement knew. This worries us greatly and is why we say there is a need to review how this is happening,” she said.
“Even if we pass legislation, if transparency supersedes protection, we will not achieve effective witness protection in this country, and our fight against corruption and organised crime will be compromised.”
There is a great irony in this statement — because the fight against corruption and organised crime is being waged within the criminal justice system, as evidence before the Madlanga commission shows.
The witnesses who testified anonymously were under severe threat before they testified at the commission — they had to leave their homes and, effectively, their lives behind due to the threats they received.
The Madlanga commission’s work is too important to keep cloaked behind dark curtains — sunlight remains the greatest disinfectant, even when it is painful.
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