Victims and the Criminal Justice System in South Africa
Written by Mistry, D.
Mistry, D. (1997). Victims and the Criminal Justice System in South Africa. Paper presented at the Centre for the Study of Violence and Reconciliation, Seminar No. 11, 29 October.
Presenter: Duxita Mistry
Paper presented at the Centre for the Study of Violence and Reconciliation, 29 October 1997.
Duxita Mistry is a former Researcher in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
The author would like to express gratitude to the Centre for Science Development (CSD) at the Human Sciences Research Council in Pretoria for their financial assistance in making it possible to attend the conference.
Thank you also to the Centre for the Study of Violence and Reconciliation for additional financial assistance.
The paper is dedicated to a special friend.
Date: 29 October 1997
Venue: Centre for the Study of Violence and Reconciliation, Johannesburg, South Africa
Like in other emerging new democracies South Africans are increasingly affected by violent crime. Crime is seen to be so pervasive that we make jaundiced claims of being the worlds most crime ridden society. This pervasiveness of crime has prompted the Centre for the Study of Violence and Reconciliation (CSVR) to initiate an interdisciplinary project to explore the relationship between victims and the criminal justice system. The focus of the research is to identify shortcomings in the criminal justice system and to explore the treatment of victims by the criminal justice system. Although this is still a work in progress, the study indicates thus far that high crime levels can be attributed in part to insensitive treatment of victims by the criminal justice system. This paper explores aspects of that relationship and points to Community Policing and Community Justice Forums (CJFs) as a viable alternative to the existing system.
The National Crime Prevention Strategy (NCPS) is a document produced in May 19966 by an Interdepartmental Strategy Team consisting of the Departments of Correctional Services, Defence, Intelligence, Justice, Safety and Security and Welfare because of concern in Government about high levels of crime in South Africa. It is a long term strategy spanning twenty five years. This document states that "the deficits in the criminal justice system undoubtedly contribute to a culture of impunity on the part of perpetrators and a sense of helplessness on the part of victims" (at 3.5.2)1 Therefore, a criminal justice system which is better able to apprehend and convict criminals will be more successful in deterring criminals and potential wrongdoers.
The crime rate in South Africa has risen at an increasing rate over the past twenty years.2 While the (reported) crime rate remained at a constant level around 4 400 per 100 000 people between 1975 and 1982, it increased from 1983 onwards, rising dramatically in the 1990s to 5 747 in 1993.3 As the crime rate has gone up, the conviction rate has steadily declined.4 The number of people convicted of crimes dropped from 1 611 per 100 000 of the population in 1972 to 1 145 in 1992 - a drop of 29% in 20 years.5 While the number of convictions increased - in absolute terms - in the mid 1980s, statistics for the last few years indicate that the number of convictions have reached their lowest point in over forty years.6
The conviction rate varies considerably by type of offence.7 Violent crimes such as murder and rape have some of the lowest conviction rates, 54,5% and 50,4% respectively.8 Shoplifting, fraud and drug related cases have the highest conviction rates, between 82% and 93%.9
In July this year the first ever street Victimisation Survey was undertaken in the Johannesburg Metropolitan area. The survey was the brainchild of the United Nations Safer Cities project. The Institute for Security Studies and CSVR are partners in this initiative. Respondents were asked whether or not they had reported crimes committed against them to the police as well as satisfaction with the way police dealt with their case. Furthermore, they were asked whether or not the police are doing a good job about controlling crime in their area. This data was analysed according to crime type and revealed the following information. In general more than 50% of the respondents who were victims of crime felt the police were not "particularly effective" in controlling crime. Typical comments were that there is no follow up, police displayed negative attitudes and came across as unprofessional. With regard to burglary, rape and homicide there was no follow up with the victims or their families after the investigation had begun. There were inadequate investigations particularly for car theft and assault with a weapon. Negative attitudes were displayed by police mainly in car theft, robbery and mugging, homicide and assault with a weapon. Unprofessional service from the police was reported by those who had been victims of car hijacking, rape and sexual harassment.
Presently, there is very little support available to victims of crime in the form of benefits from the Department of Welfare. Systematic Victim Support agencies like those in the United Kingdom do not exist in South Africa. This contributes further to the sense of helplessness felt by victims. The NCPS acknowledges that "victimisation lies at the heart of much retributive crime and the absence of means of victim aid and empowerment play an important role in the cyclical nature of violence and crime in South Africa. Victims of past or current criminal activity if untreated, frequently become perpetrators of either retributive violence or of violence displaced within the social or domestic arena".10
The NCPS' National Programme on Victim Empowerment would like to "improve the access of disempowered groups to the criminal justice process, including women, children and victims in general;11 redesign the criminal justice process to reduce blockages, empower victims and reduce unnecessary time delays;12 provide a greater and more meaningful role for victims in the criminal justice process;13 improve the service delivered by the criminal justice process to victims through increasing accessibility and sensitivity to the needs of victims14 and deal with the damage caused by criminal acts by providing remedial interventions for victims".15 This is an impressive programme but as mentioned earlier it is a twenty five year plan. Re-engineering the criminal justice system will take quite some time and implementation even longer. Short term strategies are needed to provide relief for those who have been victimised and are being victimised as we speak.
The experience of members in the Criminal Justice Policy Unit at the CSVR is that police are sometimes incapable of doing routine police work, that is taking accurate statements and carrying out thorough investigations. Judges have expressed great concern about the quality of statements taken by the police. According to an acting high court judge, it appeared that "police who take down the statements don't understand what the witness is saying, or what they are being told by the witness". A newspaper article entitled "Police lambasted over statements" reported that an acting judge in the Johannesburg High Court expressed his concern at the "scandalously low standard of witness statements recorded by the police for trial purposes [which] was of grave concern to many judges".16 Moreover, the judge said he would have had to acquit the accused had the court been forced to rely solely on the evidence of the state's main witness. "They just write down what they think the witness is saying". It illustrates that police are insensitive to victims - they are not listening and reflecting upon what is being said to them. This also has an impact on prosecution rates. In so far as the victim's statement taken down by the police differs from her\his oral testimony in court and may result in the matter being thrown out of court. Although the witness in the above incident appeared to be honest and trustworthy, the court had been forced to approach her evidence with "great caution and circumspection" because her verbal testimony had differed so greatly from her witness statement recorded earlier by the police.
South Africa is a multi-cultural society requiring interpreters in certain instances and this leads to deficiencies in policing practice. The above case is just one example. The judge stated that "interpreters are not being used to assist in the taking down of statements" … It was apparent that "there were great shortcomings in their training". The judge said several of his fellow judges had expressed similar concerns. At present there are 135 000 police members of which 30 000 are functionally illiterate (this is in a country with a population of approximately 40 million people). It encourages the perception that police are ill equipped or less inclined to investigate cases properly. The victim will not go out of her way for a prosecution and therefore the prosecutions' case is prejudiced. Consequently, it is vital that police members embark on adult basic education programmes and their skills are substantially upgraded.
The study also attempts to elucidate experiences of secondary victimisation at the hands of the criminal justice system. Certain service providers in the counselling, legal and medical fields still have to be interviewed to obtain information on victims experiences and the difficulties they encounter in the criminal justice system. This is the method we have chosen to make the voices of victims audible. At a debriefing of clinicians at the Trauma Clinic situated at the CSVR other questionable aspects of police practice came to light. It was found that: the biggest complaint against police is that they cannot be contacted - the implication as far as the victim is concerned is that police have more important things to do and the victim is not of much concern, the attitude of police indicated a lack of interest - as a result victims will learn not bother to report crimes,
- police did not introduce themselves at the scene of a crime to family members of the crime victim - this reinforces the impression that police cannot be bothered,
- police blamed victims for being careless - thereby making the victim responsible for what happened thus bothering the police because of their carelessness,
- the police hardly ever gave feedback to victims on the progress of their investigations - this gave the impression that police were not doing anything,
- police conduct identity parades haphazardly - it is a perceived threat to the victims safety for example if one way mirrors are not used,
- victims would say they know who the perpetrators are and where they could be found but police would not show any interest - it indicated that police were not going to do anything, where efforts have been made to intimidate a witness, for instance discouraging him\her from attending an identity parade or going to court, no attempt is made by the police to understand the legitimate fears of the witness and thus assist accordingly - this points to an insensitivity on the part of police, police asked victims "why didn't you shoot them" - indicating police attitudes to justice and the ongoing safety of victims (since they did not shoot the perpetrators may come back).
With victims of rape police would not offer a private room in which statements could be made with some confidentiality and would go to the extent of reading aloud statements made by victims. Police would not take a rape victim to the District Surgeon because they did not have transport.
Those reporting incidents of domestic violence were treated in a similar manner. Police sometimes refused to take such statements chasing the women away instead. Very often there was a lack of knowledge on the existence of the Prevention of Family Violence Act 1993. Section 3.1 of this Act "requires a peace officer to serve an interdict on any person accused of family violence. However, very few members of the SAPS are aware that they are supposed to serve such interdicts, and the relevant forms are not available at all police stations".17 In 1995 a report by Human Rights Watch found that the police in South Africa were "often hostile or unsympathetic to women who had been battered by their partners or sexually assaulted, that they might be ignorant of the legal remedies open to women, and that incompetence or indifference meant that many perpetrators were not arrested, or that charges laid against them were dropped. On the other hand prosecutors were likely to treat cases of violence against women with less seriousness than other assault cases and were poorly trained and paid; judges and magistrates shared the prejudices of police and prosecutors …".18 By not enforcing the Act, police are treating women shoddily and reinforcing the idea that their partners are entitled to abuse them. The attitude of the prosecution and judiciary suggests to the wider society that violence against women is less serious or alternatively more acceptable.
Neither were children treated sympathetically. They are habitually seen as unreliable witnesses and prone to exaggeration. Police close cases because they do not believe that children will serve as effective witnesses thinking that their verbal communication skills are not well developed. In the Cautionary rules, dismissive practices are entrenched such that the evidence of a young person and women in particular must be treated with caution. Cautionary rules are applied in cases of rape, indecent assault, sodomy and statutory rape.19 In sexual offences where the complainant is a female the court looks at the woman's motive for incriminating the accused. Mere proof of the offence is insufficient. The court seeks corroboratory evidence to place or connect the accused with the offence. It is said that a young child does not have life experience therefore naive, imaginative and susceptible to influence by third parties. Furthermore, the court looks at the nature of the evidence the child is giving and his or her age. This an important factor but it is not decisive. In RvS20 a 6 year old complained of a sexual crime. The judgement stated that the court would look for corroboration which would connect the accused with the crime. In effect the younger the victim the less chance there is of convicting the adult offender.
The above list indicates a demonstrable trend in the treatment of victims of crime. This insensitive treatment of victims seeks to undermine the prosecutors case through the poor quality statements given by victims. Police members are poorly paid and claim that they carry a heavy case load and are thus unable to give feedback to victims or their families on the progress of investigations. This is an inadequate explanation of the lack of communication as police consistently fail to prioritise their cases. This results in the perception that violent crimes in particular are trivialised by the police. It affects the quality of statements and the risks that victims are prepared to undergo. At present there are approximately 16 000 detectives in a police service of 135 000 members.21 "If the number of untrained and inadequately trained investigators is taken into account, it is no wonder that it is difficult to obtain a higher degree of quality in investigations".22
A study on the bail laws blames police for the declining number of prosecutions and prosecutors for declining conviction rates. Primarily because public prosecutors, or attorneys general, have the final say on which cases they will prosecute. In practice prosecution proceeds only in those cases where the prosecution believes that there is a "reasonable prospect of obtaining a conviction".23
Prosecutors usually blame the police for poor investigations. They claim the police do not interview key witnesses, statements are poor and incomprehensible, cases are not thoroughly investigated, dockets are taken to court and it is only then that gaps are found in the evidence. At that stage it is too late to remedy the situation. Moreover, police often fail to appear in court when they are required to testify. This results in postponements and eventually the accused may be acquitted. Victims feel the police are unco-operative and they are thus demeaned. It also jeopardises their case. This angers members of the public who believe that the perpetrator has more rights than a victim and therefore may take the law into their own hands to attain justice. However, prosecutors are often unprepared for some of the matters which come before court due to a heavy case load, staff shortages and a lack of motivation. A prosecutors day in court ends at four o'clock and he\she has the evening to prepare for the next day. Dockets are usually received a day before the matter is heard in court. There is thus undue reliance on the demonstrably inadequate reports of police. Prosecutors have little time for the proper preparation of cases thereby ensuring that justice is done. The only time a prosecutor can consult with a victim or witness is between eight and nine o'clock on the morning of the trial. Lengthy consultations are not possible. The net effect is that the shoddy treatment of the victim at the hands of the police is compounded by the treatment received from prosecutors. Thus the prosecutor never "gets to know" the victim or witness. All the prosecutor has time for is to go through the victim's statement with him\her. There is little proper preparation, therefore it prejudices the chances of a successful prosecution and may dissuade the victim from pursuing the case particularly if a lengthy trial is required.
South Africa has an adversarial legal system which offers very little protection to the victim and witness under cross examination. It is vital that our court system is seen to be effective and efficient when processing criminals through the system. In order to achieve this the whole criminal justice system must be reworked.
The reasons for the inability of the prosecution service to perform its functions effectively are highlighted in the South African Institute for Race Relations report. A high staff turnover, a lack of access to information technology (labour saving and information providing technology) and inadequate training are cited.
It is said that prosecutors generally do not have access to the most basic information technology equipment.24 Many prosecutors offices do not have fax machines or computers. An electronic database for the storing of fingerprints of convicted criminals does not exist. "Consequently, if prosecutors want to ascertain whether an accused or suspect has any previous convictions , the South African Criminal Records Bureau has to manually check its archives, which contain a few million fingerprints".25 It takes six to eight weeks for a set of fingerprints to be checked in this manner.26 The latest Hoexter report which investigated the structure and functioning of the courts described the salaries of prosecutors as a "national disgrace".27
In the two decades between 1970 and 1990 a total of 2 760 prosecutors were appointed (an average of 133 per year).28 Between January 1994 and December 1996, 520 prosecutors resigned out of a total of 1 620.29 Between them they had the equivalent of 2 141 years of work experience as public prosecutors.30 The high turnover of personnel within the prosecution corps has meant a decline in the experience level of the average prosecutor.31 In 1983 it was 2,8 years.32 In 1996, for the area falling under the jurisdiction of the attorney general of the Transvaal, the average period of experience for District Court prosecutors was 1,6 years.33 For Regional Court prosecutors it was 2,2 years.34 This is indicative of other jurisdictions.
Inadequate training hampers the ability of prosecutors to do their work properly. University education does not prepare prospective prosecutors for the practical side of their work. The Justice College which falls under the auspices of the Department of Justice runs training programmes for prosecutors which are not compulsory. Perhaps this should become mandatory.
In general the conditions at police stations and courts are not victim friendly. The environment is sterile and impersonal. Facilities are usually poor and not well kept. For instance, toilets are dirty. The effect is to discourage victims. The courts rely on a roll system to determine the order of cases. This results in witnesses not being able to predict the time when their case is to be heard. They are consequently compelled to remain in abeyance until the matter is heard. Delays at courts cause anxiety and create a sense of helplessness. Since the previous case on the roll may take longer than anticipated and urgent applications take precedence. Therefore, victims and witnesses have to wait around all day only to find that the case has been postponed. This discourages victims and has an impact on the conviction rate. The defence exploits the frustration experienced by victims and witnesses through repeated postponements. Moreover, the victim will be deterred because of the disruption to work (employers are not always sympathetic), social life and transport costs which have to be incurred. People worry that the perpetrators entire family will be in court and see the victim. This does intimidate the victim.
The way forward
Detectives do not ordinarily experience frequent liaison with prosecutors. This is primarily a product of the work pressures experienced by both. Despite the obvious and substantial shortcomings in the system, some arms of the police service manage to overcome these problems. Special units such as Murder and Robbery and the Child Protection Unit enjoy close co-operation with prosecutors. Apparently with victims as well. The goal of legal officers in the SAPS and the chairperson of the Prosecutors Association is a relationship of the calibre between the District Attorney and police officers in the United States of America. Legal officers in the SAPS have provided specialised units and investigating officers with guidance in respect of inspections, warrants, advice on taking statements from witnesses and suspects, interviewing suspects, opposing bail applications on a daily basis with a view to successful prosecutions. There is no reason why ordinary detectives should not have access to this kind of professional advice. Therefore, it is necessary that legal officers in the SAPS are made available at an area level to assist detectives. This will result in better quality investigations and investigators will be assured of prosecutions. Thus the prosecution will be better prepared and would not have to rely on a brief chat with the victim before the matter is heard in court. Closer co-operation between the police and prosecutors will serve well to address the needs and impressions of the process.
Assistance by other helping professions
The use of psychologists as expert witnesses in violent and sexual crimes often assists with the conviction of perpetrators. Organisations such as the Rape Crisis Centre and People Opposing Women Abuse (POWA) prepare victims to relate their stories with confidence in court. Thus the victims make good witnesses after such preparation. An example is a 16 year old girl who was gang raped. As a result of such pre-trial care she made an excellent witness and the two men were convicted receiving the maximum sentences for rape - 20 years each. Victims may realise there is a wider support network. This will address abandonment, isolation and helplessness.
In the Victimisation Survey mentioned earlier, respondents were asked what they thought government could do - other than better policing - to make Johannesburg safer. Thirty nine percent suggested more police, twenty two percent better policing and only one percent community policing. Clearly, most of the victims of crime who were surveyed thought that more police presumably on the street would make Johannesburg a safer place. It is said that visible policing has quite an impact on peoples feeling of safety and security in some societies. In general police all over the world are on patrol in their cars, on foot and horseback, motorcycle or bicycle. In South Africa police mainly do patrols in their cars. However, foot patrols and police on horseback are confined to predominantly white suburbs. These methods are not used in black communities because of mistrust and attacks carried out on police in those areas. The illusion of omnipresence which is created by visible policing has a positive effect on the minds of citizens and a negative effect on potential criminals. The Metropolitan Police in the United Kingdom believe that "high visibility patrol strengthens public confidence and trust and, when carefully targeted, makes people feel safe and keeps crime levels down".35
In order to address the needs of respondents (22%) who thought better policing would make Johannesburg a safer place, an option which should be seriously considered by the South African Police Service (SAPS) is sector policing. If Community Policing is to be implemented successfully then police members should be encouraged to work in sectors. This would entail dividing areas into manageable chunks, assigning eight to ten police members to each sector thus making them responsible for that sector on a full time basis. Police members will take ownership of the sector and equip the community to take "ownership" of their police. This will ensure that police members establish social relationships with the people they serve. This form of policing will result in better communication between the police and community. Internationally this form of policing is practised in the United Kingdom and United States of America where it is called Team Policing. In Japan the Coban system is similar but its community involvement goes further by actually trying to uplift segments of society lacking in recreational facilities.
It is of concern that only one percent of respondents were of the opinion that Community Policing would make Johannesburg safer. Perhaps the respondents were not familiar with the ethos of Community Policing, the existence of Community Police Forums (CPFs) and had not seen this style of policing being implemented by the SAPS in their areas. Until such time as the SAPS has been imbued with Community Policing we may continue to hear these types of responses. Therefore, it is necessary to support a mechanism such as the CPF through which service provision meets the needs of the people in that area.
CPFs were initially seen as a mechanism through which police-community relationships could be improved. The South African Police Services Act 68 of 1995 (hereafter the Police Act) provides for liaison between community members and police through CPFs. Various functions have been set out for CPFs in the Police Act. Principally, their function is to monitor police service in the communities they serve. But CPFs were established in a police service environment that was not supported by sector policing, appropriate recruitment policies, recognition and performance measurement instruments. CPFs are ensuring however erratically that transparency in the police service takes place at a local level. Ideas have been put forward by academics in the Western Cape to turn CPFs into Community Justice Forums or Community Safety Forums (CSFs) with representatives from the local magistrates court, police and community. Primarily because the "police neither have the time nor the interest to refer these issues [of relevance] to Welfare, Correctional Services, Justice or other appropriate fora".36 "The problem festers, community representatives become despondent, attendance and interest drops, the state justice system loses legitimacy and climate is created for social movements against crime to take up this issue with the latent danger of a slide into vigilantism".37 "Consequently, CSFs have the potential of addressing some of these limitations, resulting in better co-operation with existing person power, greater community tolerance, stronger partnerships and that, hopefully results in a better quality of life at less financial and political cost to the state".38
The study is seen as a crucial step in rendering the voices of victims audible, and as a vehicle for monitoring the service delivery by the criminal justice system. At present, the police service is under scrutiny for the lack of service delivery on its part. As mentioned previously, police do not give adequate feedback to victims or their families on the progress of investigations. This is the complaint often voiced by victims. The attitude of police members leaves much to be desired. At the charge office where most people come into contact with police they are often disappointed with their lack of sensitivity. Detectives show a lack of motivation when investigating crimes and taking statements. Good service delivery is crucial if the police are to win the confidence of members of the public.
It is my submission that each crime is treated differently in the criminal justice system and thus any analysis of this system should take into account that the "points of blockage or leakage within the criminal justice system varies according to different crime types". "Thus for some crimes the primary point of leakage may be in under-reporting (for example rape) others fall through the net at the investigation level (such as economic crime) still others in the prosecution process, others at the point of exercise of sentencing options and still others at the level of effective rehabilitation". There is a need for more interdepartmental co-operation in the criminal justice system. Departments such as Safety and Security, Justice, Welfare and Correctional Services must work more closely in order to provide support to victims of crime.
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