The Criminal Justice System:
How much transformation has taken place during the first decade of constitutional democracy?
by
Dennis Davis
Dennis Davis is a judge in the Cape High Court.
In a recent contribution to evaluation of the criminal justice system Wilfried Scharf and Boyane Tshehla (2003 Acta Juridica 160 at 161) wrote 'In the early stages of democratization one of the biggest challenges in respect of the criminal justice system is the time-lag between the dismantling of the old South African system and the construction of the new'.
An assessment of progress which has been achieved during the first decade of constitutional democracy, account must be taken of this time-lag and the causes therefor. In the first blush of freedom during the 1990's there was unquestionably an underestimation of the extent of the obstacles posed by a lack of State capacity, poor planning and management, ideological divisions, limited resources, and inadequate training of the existing personnel in the assessment of the transformative potential of the system.
Not only was structural change mandated within the context of all these obstacles, but the social and economic instability brought by decades of apartheid rule ensured that crime, particularly of a violent nature, would increase at a significant pace as social and political transformation was initiated. This is reflected in the figures. Between April 1994 and March 2003 215 000 murders were reported, violent crime increased from 630 885 to 887 128 between 1994 and 1995 and 2002 to 2003; an increase of 41%.
En passant, it should be noted that within these figures there was a considerable spatial difference; for example the murder rate in the Western Cape was reported as being 84,8: 100 000 in 2002 / 2003 compared for example to 12,1 :100 000 in Limpopo.
Not surprising therefore public perception of the criminal justice system deteriorated markedly. Prof. Kotze conducted a study in 2001. (see 2003 (16) SACJ 38. The study is somewhat dated but it still, in my view extremely suggestive of present perceptions). In this study there were two sets of respondents. The first was an elite group drawn from MPs, the ten most senior officials in each Government department, chief executive officers of private organizations, managers, editors and senior journalists, senior members of COSATU and NGOs, churches and agriculture. There was a further representative sample of public opinion.
For the purposes of this talk I will take but two sets of finding. Table I reflects a confidence index in the legal system, police and civil service. Although the elite sample contains respondents, many of whom are drawn from a constituency which would be expected to show a relatively high level of confidence, namely ANC supporters, only 34% have confidence in the system compared to opposition supporters of which an even lower 20% had confidence. Overall, the level of confidence indicated as: "Not much" and "Not at all" from these groups was 71%. On the other hand, the percentage of the public that has confidence is relative high, 64%, more than double that of the elite sample. Amongst the public, ANC supporters recorded 75% confidence compared to the 41% of DA supporters and 62% of the Inkatha Freedom Party (IFP) supporters.
Table I: Confidence index in the legal system
| Response | Elite | ANC Elite | DAElite | Public | ANC | DA | IFP |
| A great deal | 4.0 | 5.4 | 1.7 | 24.3 | 25.9 | 13.2 | 56.3 |
| Quite a lot | 24.8 | 28.4 | 18.6 | 39.6 | 50.0 | 28.2 | 5.6 |
| Not very much | 54.7 | 52.0 | 59.3 | 23.4 | 18.4 | 31.9 | 10.3 |
| None at all | 16.5 | 14.2 | 20.4 | 12.7 | 5.7 | 26.7 | 27.8 |
The second table which I wish to consider is a suspects rights index for the elite and public: positive and negative attitudes by party support. This table II indicates that the elite are substantially more liberal than the public insofar as the manner in which suspects should be treated by the police and courts are concerned. Of the elite 38%, and nearly half of the public (48%) are reported as being negatively inclined to a due process model of criminal justice.
Table II Suspects' rights index for the elite and public: positive and negative attitudes by party support
| Attitude | Elite | ANC Elite | DA Elite | Public | ANC | DA | IFP |
| Strongly Negative | 4.6 | 1.9 | 9.3 | 2.0 | 2.1 | 1.7 | 2.0 |
| Negative | 23.3 | 23.4 | 23.7 | 45.5 | 39.8 | 55.5 | 43.5 |
| Neither | 13.1 | 14.4 | 11.0 | 19.7 | 24.1 | 12.3 | 21.1 |
| Positive | 48.3 | 46.9 | 50.8 | 29.1 | 30.9 | 28.7 | 30.3 |
| Strongly Positive | 10.4 | 13.4 | 5.1 | 3.1 | 3.1 | 1.8 | 3.1 |
From this evidence at least two important conclusions can be tentatively drawn, being
There is serious, widespread disquiet across the population, notwithstanding party political allegiances, regarding the criminal justice system, albeit that the elite appear to be more concerned than the public while the former are also better disposed towards due process than the public.
Flowing from this, is the problem that the due process model of criminal justice which has been constitutionally entrenched in the 1996 Constitution is under significant pressure from the alternative crime control model.
With these considerations, it is now possible to consider a number of key challenges which will need to be met over the next decade if the criminal justice system has not to be further impaired, both on efficiency and legitimacy grounds.
There is a key challenge to preserve the due process model which, as mentioned above is the chosen constitutional model for our criminal justice system. It is important that the major advantages of this model are adequately presented to the public so that public discourse is not entirely commanded by advocates of the crime control model. Part of the problem is that current public discourse turns on the nature and use of crime statistics. Statistics become the common denominator for experience of reality and help promote a politics of indignation which swamps any process of deliberation. Statistics serve to flatten the impact of crime on different sections of the population; small wonder that the elite sample in the Kotze study have less confidence in the criminal justice system then a representative sample, the majority of whom have suffered from decades of imposed order and little law. The sociology of statistics needs to be fully deconstructed, but that must await another occasion.
Public discourse thus has the potential to subvert the constitutional scheme. Take for example the death penalty. It is ten years since the death penalty was declared to be unconstitutional by the Constitutional Court (S v Makwanyane and Another 1995(3) SA 391 (CC)). Notwithstanding this seminal decision by the Constitutional Court which asserted the principle of constitutional democracy over that of majoritarian rule, its reintroduction has consistently been raised by expedient politicians. But the death penalty has no empirical purchase in curbing the crime rates which have been described above. (See paras 116-127 and 182-183 of Makwanyane). The Department of Correctional Services should be commended for the implementation of the applicable section (Section 73) of the Correctional Services Act 111 of 1998 which ensure that those accused who are convicted and sentenced to life imprisonment are imprisoned for the duration of their sentence. A prisoner will thus serve 25 years before a court (and only a court) can consider parole. In effect therefore, life imprisonment therefore means life imprisonment. An effective system is in place. There is no serious empirical research which can support the argument that the death penalty would better serve the objective of deterrence than a well functioning sentence of life imprisonment; and yet public discourse fuels irrational advantages of the death penalty.
After almost eight years it should now be clear that, notwithstanding the introduction of minimum sentences (Act 105/97), the power afforded the courts to depart from the tariff, in the event that it finds that substantial and compelling circumstance exist, means that the introduction of a tariff does not invariably result in consistency of sentencing practice. While the SCA in S v Malgas 2001(1) SACR 469 (SCA) has provided careful guidance to judicial officers, the term 'substantial and compelling circumstances' can be made to do different work.
In a few highly publicized cases particularly stemming from the lower courts, sentences are meted out so as justifiably trigger public criticism of gross insensitivity to questions of race and gender. Although these cases are, in my view, few in number, the fact remains that far more needs to be done to ensure consistency of principle in sentencing practice. Judicial education does take place in the area of sentencing. My experience in this connection is obviously limited to the superior courts. The occasional seminar for a few hours is instructive but insufficient to deal with this critical issue for the criminal justice system. When I was a student at the Institute of Criminology at the University of Cambridge a number of lengthy, well considered practical courses were conducted for judicial officers. Thomas's Principles of Sentencing provided a coherent text book in the field. It is the least that can be expected for the South African criminal justice system to function coherently.
Of critical concern are the absence of viable alternatives to the carceral option. The reduction of the awaiting trial population notwithstanding, far too many accused still become short term prisoners in our prisons. There must be provision for additional facilities in the form of parole officers, community service and other non carceral options to ensure that prison only becomes an option for serious offences where a long term of imprisonment is necessitated. But even if non carceral options are extended, it would appear that the system of minimum sentences is having a number of negative consequences. According to Judge Hannes Fagan, the Inspecting Judge ,the increase in prison population is significantly due to the minimum sentence legislation. In his view, it has promoted a vengeful, uncaring attitude to sentencing but has not succeeded in reducing crime. (2004 SA Crime Quarterly 1).
The criminal justice system must absorb more from the principles of restorative justice. Without engaging in an exposition of restorative justice, suffice it to cite the United Nations Commission of Crime Prevention of Criminal Justice (2003) 'Restorative process means any process in which the victim and the offender where appropriate, any other individuals or community members affected by crime participate together actively in the resolution of matters arising from a crime, generally with the help of a facilitator. Restorative processes may include mediation, conciliation, conferencing and sentencing circles'.
Courts in South Africa have operated within the so-called triad adopted from the decision in the S v Zinn 1969(2) SA 537(A) at 540 G whereby the sentencing officer must be concerned with the offender, the crime and interest of society. The victim as a specific element in the decision making is significantly omitted. The concerns of the victim need to be considered in the process of sentencing in particular, and in the broader construction of the trial.
In this regard consideration should also be given to the role of indigenous justice in the debate concerning restorative justice as appears to have been done by the South African Law Commission in its Discussion Paper 87 concerning community dispute resolution structures. The point made by Kgosimore is important: 'Indigenous justice system also contains elements of restorative justice. For example, the Thembu People of the Eastern Cape attain justice through practicing the philosophy of healing and reconciliation by placing the victim, the offender and the community at the heart of the justice process. Observation among the Ba-venda people was that medicine and sacrifice, in crimes that had less serious effects could be used to cleanse and heal the offender. In other instances the offender was required to compensate the injured party and then share a ritual meal, in which all the people would eat one of the animals imposed as a fine upon the offender in public'. (cited in Tshehla: The restorative justice bug bites the South African criminal justice system' 2004 (17) SACJ 1 at 13.)
As noted above, the decline in the number of awaiting trial prisoners from 63964 in 2000 to 48346 in July 2004 is to be welcomed. However there are still far too many awaiting trial prisoners living in horrendous conditions, waiting far too long to come before a court to be confronted with a series of remands. It is clear that bail will have to be used far more imaginatively than at present and cannot simply be an excuse for reinforcing race and class in the criminal justice system.
There is still too much reliance on confessional policing, and too little investigation employed as the critical tool of policing. Far too many cases make no use of DNA or other expert evidence. Sadly even with the improvements over the past few years, from time to time sloppy police investigation results in acquittals or discharges in cases where this should not occur (see the instructive report in City Press 6 Feb 2005) That is not to say that there have not been significant improvements. For example cases brought to court have increased significantly from 529000 trials in 1996 to 1.12 m. in 2003 an increase of 112%. Prosecutions have increased by approximately 500 000 in 1996 to 1.12 m in 2003. (See in general M Schonteich Revealing figures: A ten year review of South African Criminal Justice performance 2004(17) SACJ 220).
As has been mentioned already the prison population is distressingly high. At present there would appear to be 184 806 prisoners forced into cells built to hold 114 747. Four out of every 1000 South Africans are in prison! The prison system cannot be transformed by the simple expedient of building a few more prisons.
Of equal concern is the power of prison gangs. As Jonny Steinberg has noted in his recent book The Number, it is remarkable that the basis of this gang culture particularly as developed by Nongoloza in the late 19th and early 20th century "has been preserved in the prison gangs of today – the 26s, 27s and 28s. The uniforms copied from the early Boer Republic are still there – imaginary of course, worn only in prisoners' heads. So are the .303 rifles and bayonets that the Boer commandos took into battle with the British in 1899. Nongoloza's original rank structure, dividing members between soldiers and judicial officers, and dividing the judicial officers themselves between an upper and a lower court, is still extant.
Most interesting of all, the gangs have held onto Nongoloza's original ideology. All three are organized around a largely mythical narrative of the great bandit's career. Indeed, they place the origin of their own division into three rival gangs in Nongoloza's times. And yet, while they disagree about episodes in his life, and about decisions he made in regard to the nature of banditry, all agree that he became a bandit because blacks were being disinherited of their land and forced to work like slaves in the mines. In other words, throughout the century, South Africa's prisons have incubated a fiercely anti-colonial ideology.
But it is an ideology of the most disturbing kind. Indeed, the very idea of banditry has always been a deeply unsettling phenomenon; it tampers with the boundary between acquisitive crime and political nobility; it hovers ambivalently between and aspiration to social equality and anti-social violence, between a disdain for the current order and disdain for social order in general. (at 3-4).
The combination of overcrowding and dominant gang culture is an explosive mix which can only reproduce patterns of violent crime.
Conclusion
Whatever steps are taken to meet these challenges, the criminal justice system is located in the broader socio economic environment of this country. Without speedy delivery of housing, education and communal facilities for the vast majority of South African population, this country will continue to encounter significant crime rates. Let me conclude with a personal anecdote. About a year ago I tried a brutal case of murder which involved three offenders all under the age of 20 who sodomised, burnt and murdered a young man. When my assessors and I went to Elsies River on inspection, we were confronted with appalling conditions in which the community lived. I observed that very little had changed in this area of Elsies River from what I remembered as a young student running a UCT Faculty legal aid clinic in the area. When we departed the scene I asked my assessors if the three of us lived in these conditions how many of us would be law abiding to which the unanimous response was probably only one. That in itself is an indication of how delivery of basic services is inexplicably linked with the problem of transformation of the criminal justice system.
