People will tell you that State Prosecutors (what the local DA Office is called) fear nothing in life but that is not true. There is one section in the Criminal Procedure Act they dislike, fear and absolutely hate...Section 174 Application for Dismissal.
What happens is that a crime is committed and then the police investigate it. Now many will tell you that the South African Police Services (SAPS) are useless, corrupt and unable to read and write. I want to point something out to those who hold such beliefs and tell it to everyone bored enough to listen. I said in my Mean Street Series (now more than 50 000 downloads, thank you) that the jails cannot be 400% full with a Police Service which are useless, corrupt and unable to read and write. The criminal justice system is not broken, stretched yes, very much but far from broken. They are overworked and years behind schedule...why is that? Yes, the system is such that a lot of time is wasted but it also indicates a Police Service bringing more and more criminals to trial every day. Otherwise the criminal courts would be sitting around doing nothing.
I would seriously advise you not to take the SAPS lightly and yes, many of you will have horror stories, but remember they are all you have. When you are dealing with human beings, and you have almost 200 000 of them, as small percentage will always be bad apples. Hopefully they will be sorted out as they are. Having said that, I have never served with them and would always maintain that us lads in the South African Police Force were the example to follow. Luckily my opinion counts for very little. Another point, those fancy private security companies are not policemen; they have no powers of arrest except a citizen arrest which you also have. They are not better than the SAPS despite the relentless advertising to the contrary playing on your fears. As we saw in my book, Basic Home Security, it is for them about money, not your safety.
Now back to Section 174 which is the nightmare scenario for every State Prosecutor. How the system works is that the police investigate a crime, and then arrest someone on the reasonable suspicion that he committed the crime. There are seldom "eureka" moments, it comes down to hard work and diligently following leads backed up by forensic evidence like DNA, fingerprints and ballistic tests. This docket or case file as it is called in other countries is then given to the State Prosecutors, all qualified legal men, to check. They will then decide whether to prosecute or not. There is no such thing as a "grand jury" to decide this, someone will look at it, and make that decision. It is not supposed to be politically influenced but you can bet your ass it is at times. We have seen that in recent years and will no doubt see it again. And yes, rich people are a lot more equal in law.
Unlike many other countries the South African State Prosecutors are seldom qualified lawyers by which I mean they have not done attorney articles or advocate pupil ships, they have not passed any bar exam and only have a legal degree or two. They may be entitled to the title "advocate" because they hold a LLB (JD in America) degree. It is a simple application to the High Court and you are admitted to the role of advocates and have the right to write "Advocate" in front of your name. Amongst the rest of us who did pass bar exams, did articles, they are looked down on as "plastic advocates" and with reason - a law degree alone is not nearly good enough. Such an "advocate" will always come off second best against the true professionals, it is logical. We don't rate them highly at all.
The exception is the State Prosecutor, since they are a specie on their own, they do nothing but criminal law and boring as it is, it may become complex enough at times. On this field they are excellent. They should not be underestimated and they hate, as a general rule to lose a case. Some take it as a personal affront. Us in the private sector don't care that much, we know the client almost always lies when he explains what "really" happened and that you are only as good as your witnesses. And that my friends is where your problem is, you simply don't know how a witness will perform. Being human he may have an off day, or may be angry with the taxi which cut him off or whatever. Sometimes they fold under stress and then you lose a case you should have won. So is life, you can always earn more money on the appeal. Bad luck for the accused, but so it is.
The thing is, once the accused has pleaded, that is saying he is not guilty (he can also say he is guilty and a few other pleas but let us not get technical, law is boring) he is entitled to a ruling. And if that verdict is not guilty he cannot, by law, under normal circumstances, be prosecuted again for the same crime. We call it "autrefois non convict" and the rest of the world "double jeopardy." This is very fair and to prevent State abuse. So where the accused has pleaded that he is not guilty, or the court does that on his behalf, the system is very fair, the State will then present his case via the state prosecutor. Remember there is no jury to waste time as in other countries where I am convinced they make decisions on what the accused looks like and not the evidence. Then there is the clownish behaviour of the lawyers overseas. In this place, if you were bored enough to follow the Pistorius Trial, you would have seen they are quite rigid and formal. There is no place for clownish behaviour in court; it is too serious for such nonsense.
When the State is finished he closes his case. He has called all the witnesses he wanted to call and they were examined, then cross examined by the defense and now it is the turn of the defense counsel to present his client's case. At this stage the defense may ask the court to dismiss the case against his client as per Section (not article, that is the direct Afrikaans translation to Pommy) 174. If he succeeds and the court grants it, it means the State has failed miserably and utterly to prove his case and in fact wasted everyone's time. A civil claim for legal costs and wrongful arrest etc is almost a given when this happens. It shows the case should never have gone to the court in the first place and worse, it will never go again because of autrefois non convict. It is a slap in the face of that prosecutor, 174 times.
What happens if the 174 application is dismissed? Well the defense can then close his case without calling a single witness but that would be extremely unwise, the refusal to dismiss indicates he has something to answer. Or, and this most likely, the defense simply calls his witnesses and the trial continues. That is so much better for the prosecution. And there you have it, section 174 of the Criminal Procedure Act explained. Enjoy your day further and let me reboot the Wi-Fi device again.
You know we live in violent times. We see it on the news, we read it on every website and we experience it ourselves. Our violent crime rate is higher than almost any other country outside a war-zone and because of that the private security industry is booming. I spoke to some people the other day and I wondered if there is there anyone out there who does not have a nasty criminal experience? I doubt it. Everyone I asked and know will tell me a first-hand experience of staring into a gun at some point in their lives. They will also tell me, if men, how bad they feel when they are unable to protect their family. They tell me how much money they have spent on security and how amazed they were when they get to other parts of the world and experience normal living conditions. You may not know this but having armed response, six feet electrified fences, CCTV, burglar bars, safe rooms, flood lights, emergency generators and a specialist alarm is not normal. It is only nutcases and the medically paranoid who has such things in other countries. Here we have gotten used to it and no doubt the industry drives it too. I tried to help by publishing my book Basic Home Security for free; ironically, it downloads a lot more overseas than in South Africa.
What is more interestingly these days is that I am asked by readers who left the country for various reasons whether they should come back. I understand how they feel. Whenever I am outside this country I tend to look up and if not able to see the sun at least 90% of the times or the Southern Cross every night I feel a bit lost. So I get it. On the other hand, I will never advise anyone to come back. You may wonder why not for I am not a far right whiner. In fact I am often accused of being more liberal than what is good for me. I did practice law at the most famous human rights law firm in Africa right in the beginning. Read my books and you will know I give credit to both sides and criticize what is wrong. Hence I am not politically correct but according to myself, somewhere in the middle between the liberals and whiners. Below then are my reasons to tell you to stay away.
Affirmative Action, the revenge on the white man, will not go away soon. Not in my life time and the way it is applied will cause even more problems. According to the long haired liberals who first thought it out many decades ago in America, being goody two shoes to begin with, you don't have to appoint a man who is not qualified. What it is supposed to be, is that if you have two candidates, one white and one of color, and they are both qualified, you will appoint the colored one to uplift him. It is not a bad system if applied correctly and always done for minorities. I suppose I don't have to point out that the exact opposite is going on here, no qualifications and against a minority. But mark my words; it will not go away so you are condemning your children to this when you come back. Stay away.
Secondly, and I may have said this before, those who do come back are not that popular with their own community or anyone else. You will be seen as a failure who came back because you had to. No other reason and yes, I do get it that this is unfair and sometimes plain wrong. You may have excellent new skills but that is how you are seen here. You are first white and then you have skills. The argument is, you chose to leave, you made your bed and now you are back? I doubt if you will find the grass greener this side either. Statistically you won't. We have 4/10 women without a job and 1/3 men and those are Statistics South Africa figures. I believe it is more, much more for I see it in my legal consultancy. If you advertise an attorney position, you would get 3 times more applications that for that of a secretary.
Why is that? I am not sure, but can tell you from experience, working at most law offices is no great honour or even financially viable. You are treated from the beginning, as an articled clerk, as a slave, and by the time you become a partner or director you are so programmed to serve mammon, the god of money, that you know nothing else. And you have so much debt from buying into the law office that you become what is known derisively as a "lawyer." You cannot understand why polite society looks down on you and why you are not seen as a pillar of the community by anyone except yourself.
It is easy to explain. You are still a slave, a rich one perhaps, but at the whim of every client who can fire you whenever they want to. As a legal advisor I expect the lawyer to do what I tell him and if not, bye-bye because I can replace you within seconds. I know from experience that your own valuable colleagues would sell you down the line. Wine and dine me and offer me everything including a trip to Dubai and some Russian girls just to get the account. Now note, I am a widower and not interested in either Dubai (over expensive and filled with people I don't like) or Russian girls (I love my wife, even since she went home to our Lord, I stay true to my soul mate). That tactic will not work on me but you get what I say about the status of a lawyer? Not much to be proud off. Your work is nothing but breaking down and destroying.
What is my point? Stay where you are and don't come here, it is not your home or what you remember anyway. We have changed, moved on, adapted. If lawyers are struggling to find a job you know the economy is not doing that great. None of the wonderful investments and opportunities we were promised in 1990 has come to effect. Nigeria has overtaken us as the biggest economy in Africa. Angola is spending eight times more on weapons that we do and what we have left is nothing to be proud of. ESKOM have failed us and will keep on failing us for decades to come. We now have something called "beurtkrag" or load shedding - something you never knew and probably still don’t. It means electricity, once taken for granted is now unavailable without warning. Such things show how far backwards we have slid. Stay away.
Members of Parliament have to be removed from the parliament by the police and note; it is not the policemen fault. It is the members who show no respect for the old traditions and have allowed it to become the circus it is today. This will not change but get worse...a clear sign of a banana republic. Stay away.
When you drive here you will learn to dodge the blue light convoys of the newly rich that have no respect for law and order. When you fill your car with gas, you will find out it is more expensive than that of the USA and even neighboring countries. Why? Tax mate, and what happens to that tax? I don't know for the road structures are falling apart. And then they added tollgates you have never seen to tax the motorist even further. By the way, your car will be 16 years old; that is the average age of a vehicle here. Stay away.
I can talk about schools which have become very expensive and not private ones, they always were, but the same state school you attended once for almost next to nothing. These days it is thousands of Rand. I can tell you about universities who are not even under the top 100 in Africa, never mind anywhere else. I can tell you of living expenses which go up weekly. Yes weekly, I check and see the price increases. I can tell you that today I will reboot my internet connection between six and ten times and have a 50Kb link though I pay for much faster than that. It is laughable and expensive. But mostly it is the lack of honest opportunity which is why I say to you stay where you are. You will need to learn to bribe and get the right partners if you want contracts here. Really, you need to think again. Coming back for the sun, the Southern Cross or even your parents is not worth it. Stay away.
I am talking about minority shares in a small company or a business. After 28 years in law enforcement and law, both as a lawyer and legal advisor for international multinationals, I can tell you, buying minority shares is a borderline scam in most cases. Don't do it unless you want to lose your money and frustrate yourself beyond human endurance.
So what is minority shareholding? Anything less than 51% ownership and in practical terms "He who controls the check book, controls the company." What happens is this. You are approached by a shyster, usually the "father and son" scam we speak about so often. They almost always have the Bible under the arm and use the Lords name in every second sentence - they have to...being shysters to begin with. Then they make you an offer you just cannot refuse and that should give you enough reason to run away for successful business people are seldom nice people. They may be kind and generous up to a point, thereafter they revert to true form. Remember, an offer you cannot refuse is always fishy, especially when told it is one and pushed for an answer.
This offer usually says the following. They have a business which is worth X amount. Ok, let us stop right here - who says so? They do? Well that ain't good enough in my eyes for I have already decided they are shysters even if they speak the taal and use the Lords name. You have to check independently and they would always react furiously that you dare to look a gift horse in the mouth, so to speak. That is a clear sign they are lying for a genuine company doing well is something to be proud of and they would gladly show you the books. Problem is you won't ever be easily allowed to buy shares in such a company to begin with. Why not? Because it makes no sense, they are making money, why would they want to share with you? So get your own auditor to look at the books. They are exceedingly clever people, auditors, and will spot a shyster two miles away.
Of course it may be to expand the business (the usual reason used) and they need a cash injection in which case there is many other ways to do so. First is to take a loan at a bank, it is called bridging finance and paid off quite quickly. Or to take a normal medium term loan and sign surety for it because no bankster in this world will not ask for personal surety. That is where you give your house and your life including your daughters to them. No one wants to do that but you have to ask, why are they not doing it? Perhaps they cannot get a loan for they have a bad credit record.
Now a bad credit record in itself means nothing in the real world as more than 50% of you reading here will have one. It may be a late payment or no payment or even plain fraud (they say it is a mistake) from some provider. When you live and work for your own account as a small business owner and a client suddenly doesn’t pay you, as happens frequently, it causes a ripple effect. It happens and I will never look down on a man who got trampled by the process. Or you lose your job, simply cannot find another and down you go. Read my book Your Worst Enemy how to deal with banksters and the hounds from hell known as debt collectors - legally you can hurt them as much as they can hurt you. But the point is you have to ask why they have not gone that route.
With such things, as cash injections, I would advise you to act as a creditor and loan the money against surety and remember their house is not surety unless fully paid, why, because you stand behind the other creditors who will be paid first. And if no bond on the house, then why do they need you? Any shyster banksters will gladly loan them the money. So will the ball breakers too, you know the shady uncles who operate at totally illegal and immoral interest rates. Fact is, these money lenders are, in my opinion, a lot easier to deal with than a bankster. Between the two they are more honest - you know there will be no lawyers or red tape or a computer controlling him, he will come after you with his bully boys if you don't pay. So neither the shysters, nor anyone else who is not desperate, will deal with them. They are rightly scared because they don't fear the civil courts but they do fear physical violence. Behind the big mouths they are cowards.
So that leaves you, the fool with cash they are going to do in. They offer you the 10% for X amount (it can be whatever percentage, as long as less than 51% - technically you can look at more than 24% but I don't want to become too boring here). So you agree and then they take your money and give you your shares, it looks and is very legal. They spend your money immediately, usually to pay the uncles who are threatening to break their balls or on a new bakkie for Boetie. I mean he has to look successful to get another idiot to invest to keep his lifestyle floating.
You are now expecting the promised dividends at the end of the year, you know, to recover your initial investment with a nice profit (called your return on investment of ROI) and perhaps use that as supplement to your pension. But there is a problem, since you have no control and even less say in the business they run it in the red with no profits. "It is to save on tax Mate, so we don't pay Uncle Sam." But my friend, our Lord said more than once to pay the taxman. This will bite you, when you have two books - when you sell your business you cannot show the real profits because it is fraud so your selling price goes down to almost nothing, who wants a redline company? And you run a hell of a good risk of being ruined by lawyers' fees when you get caught and you will - any lifestyle audit will fold you. But worse, you will never see a dime on your investment. When it comes to dividends, they simply use the profit, if any, to buy vehicles and take care of themselves first, there never are any dividends declared. Then your investment has just become a cheap non-interest bearing loan for them. What can you do legally? Almost nothing, you do not have much legal protection as a minority shareholder. About all you can do is to attend meetings and have insight in the books. I say again, you have no control over the direction of the company, nothing. You are left at their mercy.
Fine, so you realised, I made a mistake, let me sell my shares and get out. Now you will find out your shares are worthless, no one wants to buy them. Why should they? They have been done in before and you are too honest to lie to sell shares. You take the loss and next time you tell everyone, don't buy minority shareholdings. It is never worth the trouble.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. During his police years, he was awarded the South African Police Medal for Combating Terrorism twice besides lesser awards. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a commercial law attorney for eight years. These days he is the owner of JKLS Africa and Associates, a specialist legal consultancy which specializes in reducing legal risk in sub Saharan Africa. He wrote several books on business, law, counter-terrorism and security issues. At times he is asked to participate on the Voice of America regarding legal forensic matters.