Opening Address
by
Mr Justice M S Navsa
Mr Justice M S Navsa is Judge of Appeal in the Supreme Court of Appeal.
We recently celebrated a decade of democracy. There is a new National Director of Prosecutions. The judiciary is under discussion and national scrutiny. The Constitutional Court has a number of important cases to decide in its first term. This is an opportune time to have this conference.
That we have a high crime rate is indisputable. The levels of violent crime against women and children are unacceptably high and a matter of grave concern. Unspeakable acts of violence against children shame us all.
The war on crime has seen prison levels rise. The conditions under which prisoners are held and the speed with which they are brought to trial are matters that should concern us all. Judges and magistrates confront the daily frustrations of crowded court rolls, overtaxed prosecutorial services and limited police resources. Against these conditions they are charged with ensuring that accused persons receive a fair trial in which constitutional guarantees are met and that justice is ultimately served.
The emphasis has only recently changed towards redress for victims of crime. It is a welcome development and we should seriously be thinking of how to deal with the fact that in many cases the perpetrators of crime do not have the means to compensate victims. Since the advent of the asset forfeiture unit significant amounts of money have been recovered. We should turn to consider the viability of a state sponsored scheme of compensation in deserving cases.
In S v Baloyi 2000 (1) SACR 1 the Constitutional Court said the following concerning family violence:
All crime has harsh effects on society. What distinguishes domestic violence is its hidden repetitive character and its immediate ripple effects on society, and in particular, on family life. It cuts across class, race, culture and geography, and is all the more pernicious because it is so often hidden and so frequently goes unpunished.
The Domestic Violence Act 116 of 1998 was a welcome development. The NDPP issued a directive that domestic violence should be seen as a serious crime and that every victim should be treated with fairness, compassion and respect. It is pleasing to see that this conference will consider how to strengthen police implementation. Thought should be given to improving the legislation – without negating the rights of the alleged perpetrator. A question that requires attention is whether in cases involving partner or spousal abuse there are resources available to victims to place appropriate and relevant evidence before a court to enable it to make an informed decision. A related question is whether organizations involved in providing legal services are adequately equipped to represent victims.
The debate concerning the position of women who were convicted of murdering their abusive partners or spouses continues. The SCA recently considered and decided such a case.1 No doubt lawyers will continue their efforts to have courts consider the effects of sustained abuse and will make the arguments that are at the centre of this debate. The result will hopefully be jurisprudence with justice for all. It is a different and difficult question as to how one deals with persons convicted in the past at a time when there was less sensitivity to these issues.
Insofar as children are concerned we should be intent on ensuring that whenever their rights are affected, particularly when there are allegations of abuse, that they are represented not just by technocrats but by persons who are sensitive to issues affecting them - persons who understand how life impacts on them and who are driven to ensure that there are no permanent psychological scars left by litigation and by authoritative decision makers.
I shall deal with the question of convicted juveniles in due course.
In 1991 on the recommendation of the South African Law Commission the Criminal Procedure Act was amended by the addition of s 170 A, which permits evidence through an intermediary in certain circumstances. It provides that in if in pending criminal proceedings, it appears to the Court that proceedings in open court would expose a witness under the age of eighteen years to undue mental stress or suffering an intermediary may be appointed. Victims of sexual violence and abuse and particularly children are obvious candidates for the protective ambit of the section in question. The practical question to be addressed is whether courts have the physical and technological resources to meet the need to protect victims.
The next question is whether legal representatives and courts are attuned to the needs of victims and witnesses and whether legal representatives and interested organisations advise and insist on the protection s 170A provides in appropriate cases.
Much progress has been made by the Legal Aid Board in providing legal aid to accused persons. We are in danger of becoming complacent in this regard. We must continue to think creatively and place the poor at the forefront of all our efforts in promoting and strengthening our democracy. The mechanics of service delivery should be driven by a passion to promote and entrench the rule of law.
Much of the Legal Aid Boards recent efforts have been to place itself on a firm financial footing, to be accountable to parliament and to its constituency, to expanding its reach to those in need for legal services in civil cases. It changed its policy from providing legal services principally through the judicare system to a system where it is now driven by its justice centers placed in areas of greatest need. It has structured itself so as to involve civil society through co-operation agreements. It has a mutually beneficial relationship with university law clinics. It should now develop policy in respect of providing assistance to victims. It is in an invidious position in this regard. It provides assistance to accused persons and the obvious response to representing accused persons is that it would involve a conflict of interests. It might be able to structure representation in such a way to overcome objections, it might be able to provide funding to co-operation partners to do so. Specialized agencies might be set up to receive state funding. These are suggestions for consideration.
The LAB has made progress in extending its reach to rural areas. Much still has to be done - vulnerable groups become more vulnerable when they have no or very limited access to State resources. Consideration should be given to the use of technology to extend the LAB's reach.
The LAB and each citizen should be aggressively involved in promoting the rule of law. The instruments and institutions that we have chosen to underpin our democracy are not magically self-perpetuating. We need to be vigilant and active to ensure that everyone is equal before the law and that the guarantees promised by the Constitution are real and not illusory.
In respect of the National Prosecuting Authority, progress has been made in turning it into a professional outfit. Like other state institutions it has to compete with the commercial world in recruiting and retaining staff.
It is clear that the prosecution authority is accountable to the Minister and to parliament. In carrying out its statutory mandate it must act without fear or favour. It owes its allegiance ultimately to the Constitution. It faces the challenge of reducing backlogs, of contributing to the effective administration of justice and to optimizing co-operation with the police, prison services and courts. When it relates to international agencies it must do so in accordance with international law and the prescripts of the Constitution.
A prison visit is a sobering experience. Massive overcrowding is the norm. As a puisne judge I stopped pontificating about rehabilitation- in judgments on sentencing. Often prison administrators have their hands full dealing with the mere mechanics of managing prison populations – how to arrange meals and exercise times on rotation and how to marshal the limited resources at their disposal.
For juvenile awaiting trial prisoners imagine the shock of being thrust into these conditions. The number of prisoners awaiting trial for inordinate periods is substantial. The opportunity to develop human material so as to enable prisoners to engage in a career or to study is limited if not non-existent. Juveniles have no way of studying awaiting trial. The disproportionate number of warders in relation to prisoners is not only a security factor it impacts directly on the manner in which prisoners are treated.
Internationally the prison population is notoriously at the bottom of priority lists. This trend should be resisted. Human capital should not be lost. People should be afforded an opportunity at redemption. While prisons should not be rest and recreation centres, they should however, not hold persons under medieval conditions. Ideally, persons returning to society should not return as hardened criminals but should return as persons who are able to reintegrate as useful citizens. Human rights activists should reconsider the low priority afforded to prisoners' rights.
Much has been written in the United States of America concerning the history of and justification for a plea bargaining procedure. There is also much academic writing against plea bargaining. Interestingly, many of those who advocate the procedure avoid the expression, because it bears negative connotations – suggesting that 'deals' may be struck. I urge you to read about the American experience and to consider the accountability of prosecutors in that system who are elected and have to justify their records.
Essentially, the plea bargain procedure is promoted as a mechanism to reduce congested court rolls and is seen as contributing to the effective administration of justice. Recently a very public debate has emerged about whether in practice it benefits only the wealthy.
Section 105A of the Criminal Procedure Act came into operation on 14 December 2001. It permits a prosecuting authority and an accused who is legally represented to enter into a plea and sentence agreement. I do not intend to go into a detailed analysis of the section. I do suggest questions that require to be addressed. Does the section provide an unrestricted discretionary power or are their sufficient built-in safeguards to prevent abuse? An agreement is visualized between a represented accused and the prosecuting authority. This makes it imperative to ensure that indigent accused persons are represented at an early stage or have access to representation. The section provides representations by complainants so as to ensure that their views are taken into account. The question arises: how do unsophisticated or indigent complainants interact without representation? Questions also arise about power imbalances.
It has been stated and argued that s 105A has merely made more clear a procedure that was already available in terms of existing statutory provisions, the common law and the Constitution. It is clear that those interested in preserving the integrity of the criminal justice system should continue to monitor the manner in which the procedure is implemented.
Lastly, I turn to the position of the judiciary, which is the Institution in which much of the drama, which is the subject of the present conference, plays itself out.
Section 165 of the Constitution provides: 'the judicial authority of the Republic is vested in the courts.' It records the independence of courts which are stated to be subject only to the Constitution. The section provides that no person or organ of state may interfere with the functioning of the courts. It places an obligation on organs of state through legislative and other measures to assist to protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness of the courts.
There is almost a necessary tension, which should exist between courts and the other arms of government. Courts and judges are visually and audibly accountable. Proceedings are largely conducted in full view of the public. Reasoned judgments are required. Judgments are subject to scrutiny by, other judges, practitioners and academics. The hierarchy of courts ensure that conclusions incorrectly arrived at are put right. Judges in courts of first instance are by and large relieved that there is an appeal procedure that sets and develops the law and provides a pointer to decisions in the future. What is unhelpful and destructive of the Institution and ultimately the weakening of our democracy are ill-informed and intemperate remarks concerning the judiciary, which if not calculated to weaken the institution, have that effect.
Of course judges who conduct hearings without due regard to the values embodied in the Constitution and the rights of litigants are deserving of criticism by higher courts and by other informed observers. The extent of the criticism and censure must of necessity be linked to the conduct of the offending judge. The misconduct complained of should be specifically stated and the technical weaknesses of a judgment should be specifically identified.
I am amazed by the number of people who resort to outbursts without having seen any part of the record of proceedings or who have not been in attendance at court. Of greater concern is the developing unseemly trend of litigants commenting on the merits of a case before the litigation in question has run its full course. Within the criminal justice system courts are concerned about societal reaction and are or should be sensitive to public reaction – this must of course be contrasted with courts being dictated to by mob reaction. Court should observe one primary loyalty – the Constitution. It may serve an immediate narrow purpose to be vehemently publicly critical of a particular case – if this is done in an ill-conceived, ill-informed and emotive manner its serves only to reduce the value of an indispensable part of our democracy.
The late Ismail Mahomed, before and during his tenure as Chief Justice often spoke about the disadvantage faced by the judiciary in relation to the other arms of government. It has no army, no own budget, no police force that can summoned to serve it - for its effectiveness it relies on co-operation from other arms of government. If the judiciary operates with integrity, scholarship and fearlessness in accordance with its Constitutional duties the population it serves will be its best protector.
Personalities come and go - democratic institutions should survive us - we owe it to future generations and those past to preserve these valuable assets.
Note:
1 S v Ferreira and Others 2004(2) SACR 454 SCA