B.B.A.LL.

B (Integrated Law degree course)

Comparative Criminal Law (IX Semester)

ASSIGNMENT

“Problem of Justice System in South Africa”

Submission To: Submitted By:

Ms. Garima Lakhmani Meenal Gahlot
Assistant Professor Roll No. 132
Semester-IX
INTRODUCTION

South Africa's system of criminal justice is in a crisis. If its ability to prevent, process and deter
crime is any measure of its effectiveness, then reforming the system is now not only a necessity
but a national priority. Unfortunately, the system is not easily fixed; it is not characterized by a
single problem that can be resolved speedily, but is characterized by blockages, many of which
cause delays in other parts of the criminal justice pipeline. The system, stretching across the
departments of Safety and Security, Justice and Correctional Services, has never been a unified
one. The links between the various departments are weak and the involvement of other
departments such as Welfare, National Education and Health - that have to play key roles in the
prevention of crime - is minimal. Broadly, if it was to function effectively, the system should
consist of both proactive and reactive components. Proactive crime prevention strategies are
central to the longer term reduction of crime in South Africa. But they themselves are limited
without effective institutions to process (and rehabilitate) offenders once crimes have been
committed. While the development of proactive solutions to crime should be a priority, the focus
- at least in the short to medium term - should rest on transforming the reactive components of
the criminal justice system. Within this context, however, there is significant scope for the
development of proactive strategies - rehabilitation of offenders being the most obvious.
Some Problems related to South Africa

1. Horrifying murder statistics

There were 827 children murdered in South Africa in 2012/13. That is more than two a day.
Added to that is the 21,575 children who were assaulted, with almost half of those assaults being
severe.

In the same year, 2,266 women were murdered, and 141,130 women were victims of attempted
murder, assault and common assault. As horrifying as these statistics are, the number of women
and children who fell victim to violence is dwarfed by the number of similar attacks on men. In
2012/13 alone, 13,123 men were murdered. At best, half of these cases would have made it to
court and not all of those that make it to court result in a guilty verdict and the perpetrator being
punished.

There are several consequences of this. With each year that violence remains so prevalent, the
number of South Africans who have experienced and witnessed violence increases, and so does
the extent of national trauma. This has serious consequences the health system; our ability to
work as a nation, and our ability to raise a new generation of safe and healthy children.

But this is only one aspect of the very serious problems we face.

2. The historical context of crime

We have to look back to our recent history to understand the context for crime and violence in
South Africa, and in particular, South Africans’ attitudes to the law, policing and the criminal
justice system.

Until 1994 South Africans had little reason to respect the law, and no reason to believe in the
rule of law.

During apartheid, not only were many of the laws unjust and intended to entrench white
domination, but unfair laws were also applied unfairly. In addition, the security forces,
particularly the police, were used by the state to ensure that all South Africans lived in fear of the
state, regardless of their race.

The apartheid state was deeply corrupt at all levels, and those who held positions of power,
whether as politicians or functionaries, were very seldom called to account before a court for acts
of corruption or the abuse of power.

The situation was no different in relation to interpersonal violence and crime. Black men who
murdered were more likely to face harsher sentences than white men who murdered, especially if
the white murderer’s victim was poor and black. Black women who were raped were less likely
to have their cases investigated than cases in which white women were the victims. In this
context, who could be expected to have much respect for the law, or the rule of law?

3. A lack of respect for the law

In 2009, then Constitutional Court Judge Kate O’Regan asked in a paper about justice and
reconciliation what the implications were “of the arrest and imprisonment of so many South
Africans for deeply unjust reasons over so many years for our modern attempt to establish a
shared conception of justice in a constitutional democracy founded on the rule of law?”

She argued that the implications “must, at least in part, be the absence of a deep, value-based
commitment to respect for law in our society and deep scepticism about the possibility of justice.
The enforcement of unjust laws with the effect of sending hundreds of thousands of people to jail
over many years must have weakened any sense that law-breaking or imprisonment are of and in
themselves wrongful.”

She warned that developing respect for the law would take time, and concerted effort.

South Africa began that process badly, by not holding to account those who were responsible for
gross human rights violations under apartheid. The promise that amnesty would be offered in
exchange for the truth, and that failure to apply for amnesty would result in criminal charges,
was simply not kept.
We thus entered our new dispensation with impunity entrenched, and so it has remained for those
who hold positions of power and influence.

4. Inequality before the law

While our laws have substantially changed for the better, and our Constitution protects the rights
of all South Africans and establishes the principle that all are treated equally before the law, in
practice, this has been very difficult to achieve.

For example, it is relatively easy for Oscar Pistorius and Jacob Zuma, and others with access to
wealth, to pay for good lawyers, to be driven to court, or to see a psychologist to help them deal
with trauma or stress. It is also much easier for a middle-class victim of crime to get to a police
station to report their case to the police, insist it be investigated, and follow up to ensure that the
case receives attention. These are all necessary for a case to make its way through the criminal
justice system.

But these privileges are not available to most of the 650 000 victims of violent crimes each year.

5. No easy solutions

South African attitudes towards the law are demonstrated in small things such as the high
number of people who drive without seat belts and who drive under the influence of drugs or
alcohol; the many teachers who still beat children at school; police officers who break traffic
rules even when it is not necessary; drivers who ignore red traffic lights and so on.

It is difficult to slow this steady erosion of the law when respect for, and confidence in, the
institutions of state, including the police, are undermined by the daily experience of citizens in
their interactions with the criminal justice system.

Perhaps even more significantly, attempts to change attitudes towards the rule of law are stymied
by the disrespect demonstrated for the law and the value of life by the very people responsible
for making and enforcing the law.
For as long as those holding political office appear to act with impunity, or cynically use the
criminal justice system to dodge very serious allegations of the abuse of power and state

Just as there is no single cause of violence and crime, there is no single solution.

There is an urgent need to develop a coherent programme to prevent and respond to violence.
This would need to include at the very least the implementation of evidence-based programmes
to support parents; and strategies to reduce inequality.

However, unless those responsible for making and enforcing laws themselves show respect for
the rule of law, we have very little chance at succeeding in reducing violence and crime.

Crime trends in democratic South Africa

An accurate analysis of crime in South Africa since the advent of democracy should begin with a
review of the trends before and after 1994. Figures for the pre-1994 period show that crime rates
for most of the country have been increasing since the mid-1980s (Schönteich and Louw 2001).
However, because these statistics excluded crime incidents in the apartheid-era “bantustans,”
they are widely regarded as inaccurate. The figures recorded by the police after 1994 indicate
that recorded crime in South Africa has increased by 30% over the past decade (SAPS 2003).1
Recorded violent crime has increased more than any other crime type (by 41% compared to 28%
for property crime).

The official police statistics paint a gloomy picture. But several considerations must be taken
into account when analysing crime in South Africa:

• The reporting phenomenon. A recent national victim survey suggests that less than half of all
crime is reported to the police (Burton, du Plessis, Leggett, Louw, Mistry, and van Vuuren
2004). Moreover, reporting rates were the lowest for those crime types that, according page-
427.fm Page 428 Thursday, February 24, 2005 11:55 AM Crime and Crime Prevention in South
Africa 429 to the police data, showed the greatest increases (such as robbery and assault). In
addition, according to official statistics, offences that are traditionally well reported, such as
murder and vehicle theft, had decreased since 1994,. To some degree, then, the increase in
recorded crime is likely to be a result of increased reporting to the police. With the greater
legitimacy of the justice system in general and an emphasis on community policing and service
delivery, an increase in reporting since 1994 was to be expected.

• Alternative sources on crime trends. National victim survey findings show that, contrary to
police data, crime rates have not increased over the past five years. Surveys indicate a 2% drop
in overall crime rates between 1998 and 2003.

• There is good news. Murder statistics are widely regarded as most reliable, and the official data
show a consistent decrease in the murder rate since 1994.

• Substantial regional variation. Crime rates and crime trends over time differ substantially
between provinces and cities. For example, the murder rate in the Western Cape in 2002–2003
was seven times that of Limpopo, the province with the lowest murder rate.

• Violence is the key challenge. It is of concern that over one third of all officially recorded
crime is violent.2 The categories that present the greatest challenge are murder, armed robbery,
rape, and child rape and abuse.

• The public feel increasingly unsafe. Despite what the statistics say and the substantial efforts
of government and civil society, members of the public feel much less safe now than they did
five years ago (Burton et al. 2004).

• Similar factors drive crime in South Africa as elsewhere. The factors that have been associated
with crime in South Africa are similar to those described internationally (see Crime Prevention
Digest 1997).

New policy and legislation

One of the first challenges facing the new government in 1994 was the arduous task of aligning
the country’s law (both common and statutory) with the values and principles enunciated in the
new Constitution. While the Constitutional Court was hard at work declaring unconstitutional
law invalid, policy makers were busy drafting policies and laws that were urgently required for
the development of the new democratic order.3 Near the top of the list of priorities was the
development of a comprehensive and effective crime prevention strategy for the country.
Legislation dealing with specific types of crime was developed to complement the government’s
broader crime prevention initiative.

Crime reduction policy in South Africa involves a basic philosophic tension between two
perspectives: the crime prevention approach and the law enforcement approach. The crime
prevention approach is based on the notion that crime is caused by social, economic, and
environmental conditions, and that only by rectifying these problems can crime be addressed,
while the law enforcement approach is premised on the idea that the best way to reduce crime is
by arresting and convicting criminals.

- Crime prevention – 1996 National Crime Prevention Strategy (NCPS). This is South
Africa’s overarching policy on crime prevention. It was intended to be the guiding
framework for a wide range of interdepartmental programs aimed at increasing safety.
The four “pillars” of the NCPS covered improving criminal justice functioning,
environmental design, community values and education, and transnational crime.

At its peak, the NCPS was seen as one of six pillars of the country’s National Growth and
Development Strategy, a far-sighted move that recognized the vital role safety plays in
development. However, the change of administration in 1999 ushered in a new approach to how
government would deal with crime. Political pressure was mounting on government to deal with
the rampant crime problem, and the longer-term approach of the NCPS was not appeasing the
fears of the public or of politicians. In the end, shortrange thinking prevailed, the Growth and
Development Strategy page-427.fm Page 430 Thursday, February 24, 2005 11:55 AM Crime and
Crime Prevention in South Africa 431 was shelved in favour of the Growth, Employment, and
Redistribution Strategy (GEAR). With the possible exception of victim support, most of the
social programs envisaged by the NCPS never came to fruition (Leggett 2004).

- Organized crime - The Prevention of Organized Crime Act addresses this growing
phenomenon in South Africa. Its enactment coincided with the establishment in the
National Prosecuting Authority of specialized units to address organized crime and
corruption and to retrieve the proceeds of criminal activity.
- Terrorism - New anti-terrorism legislation has been passed by both houses of
Parliament and should be signed into law by the president soon.
- Sexual offences and domestic violence -With over 52,000 reported rapes every year,
South Africa has the highest rape rate of those countries that record these statistics. The
South African Law Commission has drafted a progressive new bill (the Sexual Offences
Bill) that is due to come into effect soon. It contains a substantially broader definition of
rape and revolutionizes many of the anachronistic procedural and evidentiary aspects of
existing sexual offences law. Together with the new Domestic Violence Act, the new law
is noticeably more victim-focused and child-friendly.
- Firearm-related offences- The incidence of firearm-related offences is on the increase
in South Africa (Thompson 2004). The proliferation of firearms is one of the factors
contributing to the country’s high violent crime rate. The new Firearms Control Act was
enacted to ensure better regulation of firearms by introducing new licensing and
competency requirements and creating new crimes and harsher sentences for the
negligent loss of a firearm.
- Corruption- A recent survey of crime victims (Burton et al. 2004) found petty corruption
or bribery to be the second most prevalent crime in the country. Recognizing the extent of
the problem, the new Prevention of Corrupt Activities Act created new and broader
categories of corruption with much harsher sentences for corruptors and corrupters. It
also introduced several novel tools to assist the government, including creating a
corruption register or “blacklist,” granting the national director of public prosecutions the
authority to investigate suspicious cases of “unexplained wealth,” and imposing a legal
duty on managers to report any suspected corruption within their department or
organization.
- Children’s rights- New laws provide additional protection for children, both as victims
and offenders. The Sexual Offences Bill referred to above contains several provisions
that ensure Crime and Crime Prevention in South Africa tional protection of child victims
of sexual offences. The Child Justice Bill (currently before Parliament) protects the rights
of child offenders by introducing diversion programs, sentencing options, and
rehabilitation opportunities for young offenders.
 - Criminal procedure and evidence- One consequence of the increase in the crime rate
and the consequent worsening of public feelings of safety has been the introduction of
some particularly harsh sentencing and bail laws. The minimum sentences legislation
prescribes life imprisonment for certain serious offences and amendments to the Criminal
Procedure Act have made it a lot more difficult for suspects to be granted bail for certain
crime categories. Although these laws have attracted some criticism, they represent
attempts to achieve a balance between the government’s longer-term crime prevention
approach and the short-term “tough on crime” law enforcement approach

- Organizational development- The South African government realized that passing new
and innovative laws without developing the organizational capacity to implement them
would not produce the desired results. In the decade after 1994, expenditure on the three
core criminal justice system departments increased by 165%, from R14.4 billion in 1994–
1995 to R38.2 billion in 2004–2005.7 Overall, government expenditure increased by
149% over the same period (Schönteich 2004). The area of change that has the most
relevance for crime prevention is the policing sector.

Reform of the apartheid-era South African Police (SAP)

It was one of the major challenges for the new government in 1994. This was necessitated by the
inheritance of a disparate and fragmented group of 11 police agencies, each shaped by the
political imperatives of the apartheid state. Given their role in suppressing popular dissent, the
police had been stripped of legitimacy and had lost the trust of the majority of the populace.

The South African Police Service Act, promulgated in October 1995, enabled

1. The amalgamation of the existing police agencies into a unified national South African Police
Service (SAPS)

2. The establishment of a civilian Secretariat for Safety and Security with formal oversight
functions page-427.fm Page 433 Thursday, February 24, 2005 11:55 AM 434 Canadian Journal
of Criminology and Criminal Justice April 2005
3. The creation of an Independent Complaints Directorate (ICD) to ensure independent
investigation of complaints of police abuses

4. A formal delineation of the functions of the Community Police Forums (CPFs), which were to
be the means of enhancing police and community interaction and local level police
accountability. Community interaction was ensured through the establishment of CPFs at all
SAPS stations.

A number of other reform initiatives are relevant to this discussion. These include innovations in
civilian oversight of the police, the creation of the Department of Justice and Constitutional
Development, the establishment of a single National Prosecuting Authority, and changes in the
Department of Correctional Services. Unfortunately, space constraints make it impossible to
discuss each of these in depth.
CONCLUSION

The primary duty of the criminal justice system is to dispense criminal justice in accordance with
the due process or rule of law. In practical terms, criminal justice refers to the determination of
the guilt or innocence of a suspect, and the allocation of punishment that is fair and proportional
to the convict’s offence. Substantive criminal justice requires equity and equality in the
enforcement and interpretation of criminal justice, which, however, can only be realized with
minimum disparities in political and socioeconomic power. Criminal justice (equity and equality)
cannot be realized if there are wide economic and political inequities and inequalities in society.
The formal rules of criminal justice – which are oft en the focus of attention by the legal
technologists (lawyers and judges) – cannot produce criminal justice if the requisite political and
economic conditions for substantive criminal justice are absent. Both formal and substantive
preconditions must be satisfied for criminal justice to be realized. Crime and criminality are
embedded in the social, political and economic structures of society. Discourse of criminal
justice should analyze: ■ What conducts should be treated as crime? ■ how is culpability to be
determined? ■ who determines culpability and what factors are taken into consideration? ■ who
determines what punishment an off ender deserves? ■ Who prescribes and calibrates the
correspondence between crime and punishment and the desert for the various offences and off
enders? ■ What factors should count as aggravating, mitigating or exculpating considerations? Is
penal desert a function of crime or of the character of the off ender? In other words, should
desert or justice be determined by the severity of the injury and losses associated with a crime or
with the conduct and background of the off ender? These questions are at the heart of the
construction and administration of criminal justice. If political and economic power-holders
make criminal laws, determine the scale of punishment, and control institutions and officials that
make, enforce and interpret law and administer punishments, can those who are excluded from
economic and political decision making and resources obtain criminal justice? Anyone
concerned with criminal justice must reflect on these questions. In brief, can criminal justice be
guaranteed and accessed by all citizens where political and economic injustices are endemic and
embedded in the very structure of the social system?