CHAPTER 1

ORIGIN OF THE INVESTIGATION AND SOME INTRODUCTORY REMARKS

1.1 During 1989 the former Minister of Justice requested the Commission to investigate the possibility of simplifying criminal procedure, with particular reference to the following questions:

(a) Whether the existing provisions relating to the procedure of pleading are unnecessarily cumbersome and/or whether they give rise to abuse.

(b) Whether 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.

(d) Whether the system under which an accused may proceed with an appeal only with the leave of the court should be extended at least to regional courts.

(e) Whether the powers of presiding officers to curtail irrelevant or unduly protracted cross-examination and testimony should be extended.

(f) Whether presiding officers should be empowered to call a pretrial conference between the State and the defence.

(g) Whether presiding officers should be empowered to order a trial within a trial with regard to a particular fact in dispute before the actual trial proceeds.

(h) Whether any other provisions relating to criminal procedure and the law of evidence should be amended in order to obviate unnecessary delays and abuse.

1.2 Owing to the extent of the investigation the Commission decided to 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 submitted to the Minister during 1994. In the previous year the Commission had published a working paper for general information and comment. 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. This investigation focused on a possible simplification of the process aimed at the elimination of delays in the completion of criminal trials. This report was submitted to the Minister on 16 January 1996.

1.3 However, during his budget vote speech to the National Assembly and the Senate in 1994, the Minister of Justice touched on a number of issues that should be addressed. He stated, inter alia, that he believed that the judicial system is 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 different schools of thought in the community. The Minister furthermore stated that it is absolutely necessary to involve the public in the adjudication process and that an investigation into a system of lay magistrates, similar to the British system, should be considered. The Minister also expressed concern for the unprecedented crime wave in South Africa. In this regard he stated that we needed innovative thinking and a new approach to solve the problems. He therefore 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.

1.4 In his address to the Senate in his budget vote in 1995 the Minister again emphasised the problem of access to justice. He stated that the key objective of the justice system in the new democratic South Africa is expressed in three words: Access to justice. He furthermore stated that the notion that all South Africa's people should have access to justice helps to determine the need and role of courts, the nature and role of other mechanisms and procedures to facilitate justice, the role of lawyers and the legal profession, the role and place of the prosecuting authority in the system of justice, the role of paralegals and advice offices, the role of legal education, the approach to legal qualifications and the rules relating to admission as legal practitioners, the role of the public and NGO's as well as the role of modern technology. Following these further requests of the Minister the Commission redefined its investigation and decided to publish a working paper on access to justice in the next phase of its investigation. In his opening address at a Legal Forum on Access to Justice, held in Durban on 17 - 19 November 1995, the Minister of Justice referred to the proposed publication of the Commission’s working paper on access to justice and the aspects the Commission intends to deal with. Furthermore, during the discussions at the Forum a number of problem areas were identified for investigation. With specific reference to the criminal justice system, this issue paper attempts to address some of the problem areas identified by the Commission as well as those identified at the Forum, to propose possible solutions and to invite comments thereon and to invite further suggestions for reform.

1.5 The Commission believes that it is of vital importance to consult with all interested parties in order to ensure the legitimacy of its recommendations. In the face of the legitimacy crisis in our criminal justice system and the crime wave that is sweeping the country, this is even more applicable to the Commission's present investigation. The Commission is therefore of the opinion that there should be deliberations on as wide a scale as possible.

1.6 It has also come to the Commission's attention that some of the aspects with which the Commission intends to deal, are currently also the subject of investigation by other agencies e.g. the question of greater community participation in the adjudication process, community involvement in the sentencing process and access to the courts. In this regard the Commission notes the Minister's reference in his budget vote speech to the investigation into a system of lay magistrates, the proposed legislation for the adoption of a juvenile justice system for South Africa which was published by the members of the Juvenile Justice Drafting Consultancy in November 1994 and the investigation of subcommittee 5 of the Constitutional Assembly into the structure of the courts and the judiciary. It is therefore necessary to outline the extent of the Commission's investigation precisely in order to prevent a duplication of work. Furthermore, if there is clarity on the Commission's terms of reference, it would also speed up its investigation if the aspects which are currently being investigated by other agencies and the latter's identities, are brought to the Commission's attention. This would enable the Commission to facilitate co-operation between the agencies involved and to co-ordinate all aspects of the investigation to be undertaken by the Commission.

1.7 Therefore, in this issue paper the Commission attempts to define the problem areas which inhibit access to our criminal justice system and which should be investigated. The purpose is to facilitate our deliberations and to obtain the input of all interested parties. The views and conclusions contained herein are not the Commission's final views and the discussion paper attempts only to provide persons and bodies wishing to comment or make suggestions for reform of this branch of the law with some background in order to stimulate further discussion and deliberations.

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