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South African Law Commission |
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4.1 The South African criminal justice system is particularly critised for the inordinate delays that occur in the disposition of cases. The right to a speedy trial has long been part of South African procedural law. Our Constitution now specifically recognises this right. Section 35(3) provides that every accused person shall have the right to a fair trial, which shall include the right to a public trial before an ordinary court of law within a reasonable time after having been charged. However, the inability of the courts to enforce this right has caused the public to lose confidence in the criminal justice system's ability to protect our citizens against crime. Furthermore, the lack of confidence in the criminal justice system seriously affects access to justice in that citizens fail to report crime, witnesses are not interested to attend court and people tend to take the law into their own hands. This problem needs to be addressed.
4.2 Improving the efficiency of the criminal justice system requires the maximum use of the resources available. In its interim report on the simplification of criminal procedure the Commission has considered a number of proposals to address the problem of delays in criminal cases (see recommendations attached in Annexure A). The Commission invites further proposals and suggestions for reform on the following aspects:
4.3 A major problem requiring urgent administrative (political) attention, is the fragmentation of control over the four different kinds of government employees involved in dealing with crime: the police, the courts, correctional services, and probation officers. Until there is someone at the head of these, who can integrate or co-ordinate their activities effectively, legislation aimed at ensuring that the adage “Justice delayed is justice denied” could be counterproductive. Review records illustrate that cases are postponed time and again because, for example, a particular accused has not been included in the contingent sent to that court from prison; or the police investigation has not been completed but witnesses nevertheless subpoenaed or the record of the accused’s previous convictions has not yet come to hand; or a probation officer’s report has been sought but is not yet available; or though at last available, it recommends correctional supervision which requires a report by the appropriate official in Correctional Services; or by reason of other suchlike factors beyond the control of the magistrate or judge. For decades the natural reaction of each of these groups has been to “pass the buck”, by blaming others, when witnesses and victims and others frustrated by interminable delays in the process complain. Unless the administrative aspects of the entire criminal justice system are addressed and improved, legislation aimed at compelling the courts to speed up the trial process (which has been mooted elsewhere) could be counter-productive. Accused persons guilty of appalling crime could demand to be excused from accounting for their deeds on the strength of rights recognized by the legislature but eroded by incompetence. Although this strictly speaking falls outside the present mandate, suggestions aimed at improving the administration of the criminal justice system as opposed to merely simplification of its procedure relevant to trials, would also be welcomed. The Commission invites suggestions and proposals on the steps that can be taken to improve control over the administration of the criminal justice system.
4.4 In the South African criminal process there are various procedures which render the system open to abuse by those who apply it (prosecutors, legal representatives and police officers as well as accused persons and witnesses) while the power of the courts to counteract the resulting delays in the completion of trials, is limited. The Commission invites suggestions and proposals to counteract delays in the criminal justice system.
4.5 Clearly, the just resolution of disputes and the sound application of the law must remain the highest priority for our courts. But to fulfill this role, the courts need to offer their services in a way that is accessible. In the practices they adopt, courts should cater to the needs of all people who use them, including those for whom the court experience is an unfamiliar one. Going to court need not be confusing, intimidating or difficult. Court practices and facilities need to be assessed against criteria of user accessibility. The emphasis should be on re-orienting the courts to a greater user focus. The development of charters (or documents, by whatever name, used by the court or tribunal, that outline aims for the delivery of services) is one very useful way to achieve this goal. In 1992 a Courts Charter was published in the United Kingdom which contains a number of user orientated measures such as:
You will only be called to court when necessary. This may be, for example, as a juror, defendant or witness. If we ask you to attend court, we will send you:
When you arrive at the court you will find:
When you go to the public counter:
When you telephone the court we will give you:
When you write to the court we will:
* Proposals for comment
4.6 The UK Charter is perhaps ambitious for all but the larger centres in South Africa, and promises on paper not kept in practice may enhance instead of alleviating disenchantment with our system. The Commission therefore invites suggestions and proposals on the introduction of basic Charters capable of implementation for criminal courts. In particular, the charters should focus on services provided to the community. They should publicly state objectives and plans in areas such as:
4.7 Criminal cases should be finalised as soon as possible and steps should be taken to expedite the disposition of cases. Overburdened court rolls should be eliminated and the structure of the courts should be reviewed in order to address this problem.
* Proposals for comment
4.8 The Commission invites comments and suggestions for a case management system for criminal cases.
4.9 Benchmarking is the comparison of an organisation's service delivery processes with similar processes elsewhere. We need a continuous and systematic evaluation of the performance of our criminal justice system in order to improve its performance against what are recognised as the best practices to follow.
* Proposals for comment
4.10 The Commission invites suggestions and proposals on steps that can be taken to improve the efficiency of our criminal courts and their performance.
4.11 Judges and magistrates are of pivotal importance to the proper functioning of our courts. They are responsible for administering the primary functions of those bodies. People are interested in judicial decisions, they have a special interest in the appointment of judges and magistrates and they need to feel confident that the process by which they are appointed is designed to find the best people for that important role. Our system should be evaluated to establish whether it satisfies this requirement.
* Proposals for comment
4.12 The Commission invites suggestions and proposals on steps that can be taken to improve the criminal justice system in this regard.
4.13 The provision of professional development programs is an important means by which the quality of decision making may be enhanced and it should be reviewed.
* Proposals for comment
4.14 The Commission invites proposals and suggestions for improving the quality of the personnel involved in administering the criminal justice process.
4.15 With very few and easily understandable exceptions, all court proceedings should be conducted in public. The public has a right to be present in court or to receive reports on court proceedings. In this regard the debate about whether that openness should extend to the televising or radio broadcasting of court proceedings should be considered. Although broadcasting is widespread in a number of overseas countries, notably the United States, it is rare that television cameras appear in our courtrooms. Even radio broadcasting of cases does not occur. The value of this option should be reviewed to assess its contribution to improve access to justice.
* Proposals for comment
4.16 The Commission invites suggestions and proposals for reform of our criminal justice system in this regard.
4.17 The Constitution recognises 11 official languages. In the past the majority of the people were linguistically disenfranchised and therefore the justice system was not really accessible to them. The right to use one's own language is now entrenched in the Constitution Steps should be taken to comply with the requirements of the Constitution.
4.18 The complexity entailed in a legal discourse in a courtroom depends very much on the flow and quality of communication between all the role players as facilitated by the interpreter. Furthermore, the language proficiency and skills of the interpreter depend largely on the quality of his or her training. The urgency of solutions to the language problem is emphasised by the fact that at present most accused persons are illiterate, they are faced with court procedures which are unfamiliar and the outcome of criminal trial may have serious consequences for an accused.
* Proposals for comment
4.19 The Commission invites comments and suggestions on the following issues:
(i) Interpreting in our courts should be professionalised.
(ii) The status of interpreters should be elevated by conducting upgrading courses. Consideration should be given to formal training courses in interpreting and translating. Accreditation by a central or national accreditation board could be considered.
4.20 Laws that are easier to understand and easier to find help to improve community access to justice. Persons drawn into the criminal justice system must be in a position to readily approach and gain access to the system. The rules of our criminal procedure are complicated and in essence they are rules written by professionals to be applied by professionals. Vast numbers of accused persons, however, appear in our courts daily and for the majority of them it is their first encounter with the criminal justice system. They are confronted with complicated rules of procedure in an unfriendly and intimidating environment and more often than not they also do not have legal representation.
4.21 In essence a criminal trial is a reconstruction of a crime committed and it takes place according to rules of criminal procedure, criminal law and the law of evidence. These rules were designed by professionals for professionals and accused persons and witnesses are lay participants in the proceedings. Although their rights are explained to them throughout the proceedings it can safely be said that such explanations are more often than not ineffective. The entitlement to rights is meaningless if one cannot exercise those rights. There is therefore clearly a need to make criminal proceedings more accessible.
* Proposals for comment
4.22 The Commission invites comments and proposals for reform on:
(i) Encouraging community consultation in the development of laws to ensure that they are well understood and responsive to community needs.
(ii) Supplying the public with booklets or brochures, informing them of their rights and the relevant procedures.
(iii) Use of technology (videos) to overcome problems of illiteracy.
(iv) Introducing a program for simplifying and improving legislation so that people are able to determine when their rights and obligations are affected without needing to rely on the legal profession.
(v) Creating uniformity in the laws that apply equally to all South Africans regardless of where they live.
(vi) Providing facilities for accessing legislation so that ordinary citizens are able to locate easily the laws that affect them.
(vii) Expanding community education programs to increase community understanding of the laws and provide people with the knowledge that will enable them to more easily resolve their legal problems.
(viii) Supplying legal representation to all accused persons appearing in court.
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URL: http://www.saflii.org/za/other/zalc/ip/6/6-CHAPTER-4.html