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CHAPTER 1

ORIGIN OF THE INVESTIGATION AND SOME INTRODUCTORY REMARKS

1.1 The subject of this discussion paper is an investigation into the feasibility of introducing inquisitorial elements into the South African criminal procedure.

It is appropriate to give some background information on the terms of reference of the Commission’s investigation into simplification of criminal procedure. During 1989, the former Minister of Justice requested the Commission to investigate the possibility of simplifying criminal procedure, with particular reference to a number of questions, for example: whether (i) the existing provisions relating to the procedure of pleading are unnecessarily cumbersome and/or whether they give rise to abuse; (ii) objections and arguments with regard to the charge, further particulars and jurisdiction, which unduly delay the commencement of the trial on the merits, could be countered or limited; (iii) the powers of presiding officers to curtail irrelevant or unduly protracted cross-examination and testimony should be extended; (iv) presiding officers should be empowered to call a pretrial conference between the State and the defence; and (v) whether any other provisions relating to criminal procedure and the law of evidence should be amended in order to obviate unnecessary delays and abuse. The investigation was included in the Commission's programme during 1990 and initially its terms of reference were to consider possibilities of simplifying criminal procedure and to address problems of delays in the finalisation of criminal trials. The Commission appointed a project committee to finalise its investigation.

1.2. However, since inclusion of the investigation in the Commission’s programme, the project committee, initially chaired by Judge PJJ Olivier and since 1996 by Judge L van den Heever, was requested to deal with additional aspects. Owing to the extent of the investigation the project committee decided to proceed incrementally with the investigation and publish several working papers dealing with different aspects of the investigation. In the first phase of the investigation the Commission published a working paper which addressed appeal procedures and related matters. This part of the investigation was completed and a report was presented to the Minister during 1994. In the second phase of the investigation the Commission published a working paper for general information and comment during 1993. This working paper addressed the reasons for delays in the completion of criminal trials, abuses of the process, specific provisions of the Criminal Procedure Act that cause delays, and problems relating to the administration of the process. The Commission approved a report during 1995 which was presented to the Minister on 16 January 1996. The Minister approved the publication of the report which was subsequently Tabled in Parliament during June 1996. Legislation flowing from the report was approved by Parliament during October 1996.

1.3 During his budget vote speech to the National Assembly and the Senate in 1994, the Minister of Justice stated, inter alia, that the judicial system was in need of fundamental changes in order to make it more accessible to the public. Legal procedures should be simplified, terminology should be less technical, the judicial system should serve the community and it should also reflect the schools of thought in the community. The Minister expressed concern for the unprecedented crime wave in South Africa and he was of the view that innovating thinking and a new approach to solve these problems was needed. Following these statements the project committee proceeded with an investigation into access to the criminal justice system and an issue paper was published for general information and comment during the course of 1997. The issue paper concentrated to a large degree on the reform of the legal aid system and the introduction of new legislation on lay assessors. Subsequent to the publication of the issue paper a Legal Forum was held on Legal Aid in South Africa during January 1998. The outcome thereof was the appointment of a task team to review legal aid in South Africa. This task team completed a report and submitted it to the Minister during the course of 1998. In addition the Department of Justice proceeded to develop legislation on the use of lay assessors and finalised draft legislation. In view of these developments the project committee reconsidered completion of this part of the investigation and resolved not to proceed with its review of this part of the criminal justice system.

1.4 During 1994 the Minister also requested the Commission to give urgent attention to the problems arising from the application of the Bill of Rights to criminal law, criminal procedure and sentencing. A new investigation was consequently included in the Commission’s programme (Project 101- The application of the Bill of Rights to the criminal law, criminal procedure and sentencing) and the project committee dealing with the investigation into the simplification of criminal procedure was requested to deal with this matter. A draft discussion paper was published during January 2000 and a report will be finalised in the course of this year.

1.5 On 30 January 1998 the Minister approved the inclusion of an investigation into allowing the Attorney-General to appeal on a question of fact relating to the merits of the case within the ambit of the investigation into the simplification of criminal procedure. A discussion paper in this regard was published during January 2000 and a report was finalised during the course of the year 2000.

1.6 As part of its original terms of reference the project committee also resolved to include an investigation into the question of introducing more inquisitorial elements into our criminal procedure. During 1998 GTZ (Deutsche Gesellschaft für Technische Zusammenarbeit) concluded an agreement with the Commission with regard to cooperation through a joint project called Legislative Drafting, which provided for financial and technical assistance to the Commission in the development of legislation relating to the criminal justice system.

1.7 At its meeting on 26 November 1998 the project committee considered the planning of its investigation into a more inquisitorial approach to criminal procedure. With the financial assistance of GTZ a contract was concluded with Professor NC Steytler to research the matter and to prepare a discussion document for consideration by the committee. During the latter part of 1999 a new project committee, chaired by Judge LTC Harms, was appointed and this discussion document was considered by the new committee at its meeting on 3 September 1999. Professor Steytler identified a number of components which should be targeted for investigation, namely

• a greater role in the process by the judicial officer;
• providing the court with access to information (docket);
• taking defence disclosure further and making recommendations in this regard;
• judicial management of trials and case management; and
• a review of section 115 of the Criminal Procedure Act.

1.8 Following this meeting the committee resolved that further research should be done and with the assistance of GTZ further research in this regard was undertaken by Professor PJ Schwikkard and Judge Nugent. They were requested to prepare a discussion document which was to build on the discussion document prepared by Professor Steytler and to provide an analysis of the problems as well as goals to be achieved. They were also requested to consider possible solutions to the problems highlighted by Professor Steytler and to give special attention to -

* Police questioning of the suspect/accused, its legitimacy, effectiveness and the right to silence and its consequences. In this regard special attention had to be given to the following -

• the extent to which a suspect/accused could legitimately be questioned and hence used as a source of evidence at the different stages of the criminal justice process (from pre-trial to the trial phase);
• consideration of the different options to make police questioning more effective, including by bringing it under control of codes of conduct or by bringing it under judicial control or by legislating police questioning;
• the consequences of and constitutional implications of police questioning having due regard to the right to silence; and
• the different admissibility requirements for admissions and confessions.

* Defence disclosure before and during the trial. In this regard special attention had to be given to -

• whether or not the defence should be required to disclose relevant evidence, and if, so the extent to which it should be required; and
• a review of the provisions of section 115 of the Criminal Procedure Act and its interaction with the right to silence and the consequences of non-disclosure. The ambit of the investigation extended to the plea process, and the constitutional provisions were therefore important considerations. In this regard consideration should also be given to plea proceedings in terms of section 119 of the Criminal Procedure Act where proceedings before a magistrate are ignored when the trial proceeds afresh in the High Court.

* A greater role in the criminal justice process by judicial officers. In this regard attention had to be given to two aspects in particular, namely access to the docket and their ability to control the pace of litigation.

• Access to the docket: In the current South African system the judicial officer does not have access to the docket. This has important consequences for the ability of presiding officers to control the process. Furthermore it inhibits their ability to ascertain the truth. The issue raises important questions regarding the status of statements in the docket and the admissibility of evidence in view of evidential rules relating, for example, to previous consistent statements. However, if the docket is available to presiding officers, issues which would in the normal course of events take up days of cross-examination can be solved instantly. This will also enable judicial officers to participate actively in the trial and to control the judicial process, in particular with reference to the judicial officer’s ability to ensure that all relevant witnesses are called or to prevent the calling of unnecessary witnesses. In this regard special attention was to be given to -

• providing the court with access to the docket;

• the admissibility of statements contained in the docket;
• the legal status of the docket;
• the weight to be given to information contained in the docket; and
• how judicial officers should use the information in the docket.

* Possible ways of enhancing judicial management of trials and case management.

1.9 This discussion paper is in the main based upon the research results of Professor Steytler, Professor PJ Schwikkard and Judge Nugent. During the beginning of 2000 the project leader, Judge Harms, had discussions with Mr B Ngcuka, the National Director of Public Prosecutions, following which Mr G Nel was co-opted to the project committee as representative of the Prosecution Authority. The proposals for legislative amendments are founded on these research results and the input of the Prosecution Authority, and were approved by the project committee at its meeting on 21 November 2000.

1.10 The discussion paper, therefore, firstly identifies shortcomings in the adversarial process and secondly investigates whether there are ways of adapting the process in the interest of truth-finding, fairness, and efficiency. The discussion paper commences with an outline of the basic elements of the adversarial and inquisitorial modes of criminal procedure. Thereafter an exposition is given of how the operation of the adversarial system in South Africa impedes the realisation of the objectives of the criminal trial. This is followed by a sketch of the current approaches to these problems. In search of solutions, recent developments in international law and foreign jurisdictions dealing with similar issues are then surveyed. The paper also identifies some aspects of South African criminal procedure which should be addressed, and concludes with proposals and recommendations for legislative intervention.