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• The Problem
• The Crime Situation In South Africa
• Breakdown In The Criminal Justice System
• Lack Of Focus On The Victim And The Development Of Victim Support Services

CHAPTER 3

THE PROBLEM

The crime situation in South Africa

3.1 The question whether victims of crime, compensation for victims and community participation in the criminal justice system require special attention can be answered only when the situation with regard to crime in South Africa is considered.

3.2 South Africa is at present experiencing a crime wave that may have far reaching consequences for our citizens, economy, social services and our judicial system. When comparing statistics for the period 1 January to 31 July 1993 with the same period during 1994, there is an increase of 3,64% in the prevalence of serious crimes, namely from 1 025 109 cases reported during 1993 to 1 062 457 cases reported in 1994. During the first seven months of 1994 282 911 (26,62%) crimes were reported in Gauteng as against 187 729 (17,67%) in the Western Cape and 173 918 (16,37%) in KwaZulu Natal. The following diagram gives an overview of the number of serious crimes that were reported for the period 1992/1993.

3.3 When evaluating crimes of violence it appears that 10 448 murders were reported during the first seven months of 1994 as against 10 229 murders during the corresponding period in 1993. This represents an increase of 7,14%. A more detailed analysis shows that 128,93 murders per 100 000 members of the population were reported in KwaZulu Natal, 52,29 per 100 000 members of the population in Gauteng and 38,71 per 100 000 members of the population in the Western Cape.

3.4 In respect of rape 14 312 rape cases were reported during the first seven months of 1993 as against 16 606 during the corresponding period in 1994. This represents an increase of 16,02%. With regard to rape cases the problem areas were Natal, 12,82 per 100 000 members of the population and the Eastern Cape with 93,54 per 100 000 members of the population.

3.5 Robbery showed an increase of 11,73% for the period January until July 1994 as against the corresponding period for 1993. The following table gives an overview of the prevalence of robbery in the areas of Gauteng, KwaZulu Natal and the Western Cape:

3.6 When comparing the situation internationally with South Africa, there is, from a South African point of view, a need for concern. When taking into account that 94 persons per 100 000 members of the population were murdered during 1993 and when it is compared to the 4 and 8 per 100 000 members of the population in France and Germany respectively, the situation reflects a need for concern. The same trend is to be found in respect of rape. In South Africa it is at present 18 per 100 000 members of the population, in France 7, Germany 14 and the USA 41. The implication of the figures quoted above is that for all the crimes committed there are victims whose needs require consideration. The question that needs to be resolved urgently in South Africa is what is the current legal position of victims, or, more importantly, is there a need for reform and if so how can the plight of victims be improved.

Breakdown in the criminal justice system

3.7 In South Africa both the government and the public have become increasingly concerned about rising crime and accusations have been made that neither the State nor other social agencies are doing anything much about addressing the plight of victims of crime. The rising crime rate has been attributed to a breakdown in the criminal justice system. However, the coalescence and institutionalisation of initiatives in crime has begun, as is shown by the launch in 1995 of the Business Initiative Against Crime (BAC). To some extent the activities of the Truth and Reconciliation Commission may also be regarded as an attempt to address the problems of the victims of crime^[17].

During 1994 the White Paper on the Reconstruction and Development Programme (RDP) was published and it sets out the Government's strategy for fundamental transformation of the society and economy. Among others it deals with the devastating effect violence has had on society and the need to restore peace and a sense of community security.

3.8 Furthermore, the Government's National Growth and Development Strategy (NGDS) has its origin in the RDP and it sets out a socio-economic framework to reach the targets of reducing poverty and improving quality of life. It defines six pillars of enabling policies to help Government to prioritise areas of activities and one of these pillars is to ensure the safety and security of all citizens. The National Crime Prevention Strategy (NCPS) forms the core component within the pillar on Safety and Security and it is a medium to long term strategy to address the factors that lead to high crime rates, and includes prioritisation of urgent crime areas, community policing, public awareness, co-ordination mechanisms and legislation. Within the framework of the NCPS, which is a national programme, the Department of Justice has developed prime projects based on line functionary activities and one of the prime projects is restorative justice which will inter alia deal with the plight of victims of crime. It is within this framework that the Commission's investigation into the plight of victims of crime should be seen.

3.9 In the past victims and their families were responsible for acting against the commission of crime themselves. They were able and indeed obliged to take the necessary steps against the offender for damages caused or losses suffered as a result of the latter's conduct. With the centralisation of power in the Middle Ages in the hands of owners of property and kings, a crime was regarded as a contravention of the "King's Peace" and not against the individual. This shift in emphasis caused owners of property and kings to regard their subjects as their property and the compensation to which they were entitled as a result of crimes committed against them, were regarded as payment for loss of their labour.

3.10 The maintenance of law and order, the administration of public affairs and the promotion of community welfare and public order are responsibilities entrusted to the State as sovereign authority. Government not only has the right but also a duty, through its constitutional obligation, to guarantee the safety of every individual and the community as a whole within the framework of government policy. Except in cases of self-defence, the public have entrusted their right to protect and defend themselves to the State. In return the State undertakes to protect individuals through fair conduct by police officials, the maintenance of a just legal system, laws and standards and objective court procedures. The State has a moral duty to ensure a safe community to all its citizens. This moral duty finds expression in the welfare principle in terms of which the State has a humanitarian duty to victims of crime. Although no formal contract is concluded between the State (government) and its subjects, the former undertakes to promote the social welfare of those who voted for government and whose interests the government represents. Government therefor has a legal and moral duty to give recognition to victims of crime through the court process and to take cognizance of their interests in the sentencing process. It is from this perspective that arguments in support of recognition of the interests of victims of crime in sentencing should be viewed.

3.11 Concern about the relegation of victims to an especially passive role in the criminal justice system has its intellectual roots in the emergence of victimology as a discipline in the late 1940's. The development of a victim's movement advocating a proper place for victims in the criminal justice system, has been one manifestation of that concern. The victim's movement was clearly identifiable in the United States and England by the early 1970's. The movement began to emerge in Australia in the early 1980's and it was fuelled by the attention given to domestic violence and sexual assault in feminist and other literature and by the emphasis given to the notion of retribution inherent in "just deserts". Since the 1980's official inquiries have specifically considered the role of victims in the criminal justice system in many jurisdictions. In the course of sentencing enquiries the role of victims in sentencing has been considered in many jurisdictions, including the USA, Canada, South Australia, New South Wales, Victoria, Tasmania and the Australian Capital Territory^[18].

3.12 In their interactions with authorities people want to be treated in a polite and considerate manner. In this respect, victims are not different from other people, including offenders. Interest and consideration are important for victims in their interaction with the police and the public prosecution. Victims want authorities to recognise their position and their interest in the case. When authorities show an interest in the victim and consider his/her wishes, they profit from an increase in victims' satisfaction and support for them.

3.13 However, in their contacts with legal authorities, victims are confronted with a system which largely neglects their interests. They are often not taken seriously and are excluded from the criminal justice process. Victimisation shatters the individual's belief that the world is caring and that the self is worthy. Reactions from the police and the prosecution can affect how the victim rebuilds his/her view of society. Furthermore, failure to recognise the position of the victim augments victim disillusionment with the world they live in and has a negative impact on their satisfaction and support for legal authorities^[19]. Therefore, how legal authorities treat victims affects the quality of the relationship between victims and the criminal justice system.

Lack of focus on the victim and the Development of Victim Support Services

Background

3.14 Although South Africa is a signatory to the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, community participation in the criminal justice process is almost non-existent, reparation to the victims of crime is inadequate and limited services are at present being provided to victims of crime. The existing provisions contained in legislation and services available for victims of crime are outlined below.

3.15 Most victims services developed since the 1990's when various welfare organisations and non-government institutions established victim support services such as rape crisis units, family and child abuse services, child line and refuges for victims of domestic violence. In the 1980's services were extended to victims of violence such as terrorism and robbery. The police also established child protection units. It is, however, clear that at present there is a strong movement towards the establishment of a co-ordinated victim support service, but it will take some time before results would be visible.

3.16 In terms of section 3(d) of the Probation Services Act, 116 of 1991, the Minister may establish programmes aimed at the care and treatment of victims of crime. Provision is also made for programmes aimed at prevention of crime (3(a)), information to and treatment of offenders and other persons (3(c)), the observation, treatment and supervision of persons released from prison (3(e)), the establishment, financing and registration of shelters (3(g)) and the compensation of victims of crime.

3.17 The Working Group Crime Related Matters Input for the White Paper for Social Welfare points out that victims of crime have been neglected in South Africa and services to date are ad hoc and piecemeal and there are too few social workers to assist and provide treatment for the victims of crime as stipulated in the Probation Services Act. They stress that there should be more emphasis on the needs of victims of crime and their rights should be carefully balanced with those of offenders.

3.18 Legislation was also enacted to counteract family violence (see The Prevention of Family Violence Act, 133 of 1993). There is currently no State Compensation Fund to assist victims of crime although a State President's Fund for Victims of Terrorism was established on 20 May 1983.

3.19 In theory victims can also institute criminal proceedings against the offender if the attorney-general declines to prosecute, but this is very seldom used in South Africa as most victims are not aware of this right and very few have the resources or legal knowledge to pursue such action.

3.20 The Promotion of National Unity and Reconciliation Act, 34 of 1995 represents steps already taken to give greater recognition to victims of crime. The Act affords victims an opportunity to relate the violations they suffered and provides for measures aimed at the granting of reparation to, and the rehabilitation and restoration of the human and civil dignity of victims of violations of human rights.

Compensation in terms of the Criminal Procedure Act

3.21 Section 300 of the Criminal Procedure Act, 51 of 1977 makes provision for the payment of compensation to victims of crime at the request of the prosecutor. Claims for damage or loss are limited to damage or loss of property and for purposes of determining the amount of compensation, the court may refer to the evidence and the proceedings at the trial or hear further evidence. Section 301 of the Act provides that where a person is convicted of theft or of any other offence whereby he has unlawfully obtained property, and it appears to the court on the evidence that such person sold the property or part thereof to another person who had no knowledge of the real situation, the court may, on application of such purchaser and on restitution of the property to the owner, order that out of any money taken from the accused on his/her arrest, a sum not exceeding the amount paid by the purchaser be returned to him.

3.22 The Act, however, does not make provision for compensation to victims for injuries sustained as a result of crime nor for the payment of compensation to the family if the victim was killed. South African courts seldom pay any attention to losses suffered by victims of crime. Orders for compensation will furthermore not be considered unless the comlainant requests the public prosecutor to apply to the court for an order and complainants seldom make use of the povisions because they are either not present or they don't know about the provisions of the Act.

Witness and victims protection programme

(i) Section 185A of Criminal Procedure Act, 1977

3.23 As it became evident to the Government that the existing measures did not sufficiently address the need for the protection of witnesses and victims of crimes, and that there was a need for a system based on the voluntary co-operation of witnesses, specific measures were introduced to ensure that witnesses with material information come forward and testify. To this end, the Criminal Law Amendment Act, 1991 (Act 135 of 1991), was put on the Statute Book. This Act has as its objective the protection of witnesses by the insertion of, amongst others, section 185A in the Criminal Procedure Act, 1977.

3.24 Section 185A came into operation on 31 July 1992 and provides that a witness or prospective witness who has reason to believe that his safety or the safety of a member of his family or household is being threatened, may report to a police station or local public prosecutor for protective custody for himself, his family or household, and that such persons are to be detained in or placed under protective custody. Such persons are protected by a member of the South African Police Services at a place of safety or at his home, hotel etc, in the manner that is deemed necessary.

3.25 To ensure that a witness does not endure financial hardship as a result of the programme, provision is, inter alia, made for the payment of allowances to a witness in protective custody as well as remuneration in respect of loss of income.

3.26 A properly structured and successful Witness Protection Programme can be one of the major contributing factors in stemming the high crime rate in the Republic. The Department, realising the crucial role that victims play in the administration of justice and that witnesses are often too terrified to testify in court due to intimidation, is at present taking steps to restructure the witness protection programme that is operating in terms of the above-mentioned section 185A of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). A task group is also looking into a possible witness protection programme that can be used by the Truth and Reconciliation Commission and cognisance is taken of problems that are being experienced with the present programme in terms of the Criminal Procedure Act. It is, however, clear that, in order to properly structure and run the witness protection programme, utilizing the expertise of several government departments and NGO's is essential, and this is receiving attention. The present programme (in terms of section 185A) notwithstanding several shortcomings, is at present protecting more than 90 persons, including family members of witnesses.

3.27 As far as the protection of witnesses is concerned, only a limited service is provided due to a lack of funds. Provision is, however, made in the Criminal Procedure Act for the protection of the identity of rape victims and cases can also be heard in camera. The testimony of child witnesses (child abuse victims) can be relayed to the court via closed circuit television.

Special courts and equipment

(i) Special Courts

3.28 In the office of the Attorney-General, Kimberley a specific group of women advocates has been detached to deal specifically with cases where children are the victims of crime. In the offices of most of the other Attorneys-General these cases are handled by skilled personnel. Directives with specific instructions regarding the prosecution of cases of child abuse, have also been issued to public prosecutors by, inter alia, the Attorneys-General, Bloemfontein, Kimberley, Cape Town and Pretoria.

3.29 Specialized training to public prosecutors and magistrates is also presented at seminars or during courses at Justice College pertaining to dealing with children and women victims. The training includes:

• Specific attention to consulting with and preparing children as witnesses;
• attention to the aspect of dealing with the child during the trial and protection of these witnesses against unfair questioning or behaviour during the trial;
• continuous contact between the specialist prosecutors and lecturers at the College to keep them up-to-date with developments; and
• lecturers focus in particular on crimes/offences where children/women are the victims.

Children's Courts

3.30 Section 5 of the Children Care Act, 1983 (Act 74 of 1983) provides that every magistrate's court shall be a children's court for the area of its jurisdiction. In terms of section 8 of the said Act, a children's court sits in a room other than that which any court ordinarily sits and no person is present unless his presence is necessary in connection with the proceedings of that court.

Juvenile Courts

3.31 At present no provision is made in the criminal justice system for specialized courts to adjudicate criminal matters involving juvenile offenders. Although such matters are dealt with by the existing lower - and supreme court structures in terms of the criminal law and procedure applicable to all offenders (adults and juveniles), provision is made by the Criminal Procedure Act, 1977 (Act 51 of 1977), for certain exceptions with regard to the handling of cases involving offenders under the age of 18 years. In terms of section 254 of this Act the proceedings in the criminal court may be stopped and the court may refer the juvenile accused to a children's court operating in terms of the Child Care Act, 1983. Section 290 and 291 of the Criminal Procedure Act, 1977, also provides for certain orders in terms of which a juvenile may be placed under supervision of a probation officer or sent to a reform school, instead of any punishment being imposed.

The sexual offences court in Wynberg

3.32 In Wynberg the Attorney-General established the first sexual offences court in March 1993 with the main objective to protect victims from secondary victimisation during court proceedings. Two full-time prosecutors are assigned to the court and every complainant is consulted prior to the trial. A private consulting room is available to complainants. This is, however, an experimental project and its success or failure will determine whether similar courts will be instituted elsewhere. It appears to be appropriate to outline the reasons for the introduction of the Special Court for Sexual Offences briefly.

3.33 Advocates of women who have experienced male violence have long highlighted the unsympathetic, disbelieving and inappropriate responses or secondary victimisation that women experience at the hands of society in general and at each stage of the criminal justice process which exacerbate the effects of the sexual assault upon women. The State has also been criticised for its failure to respond to this secondary victimisation and for not providing any victim support infrastructure. There has never been an in-depth research done on the victimisation of the survivors of sexual assault.

3.34 At every stage of the criminal justice system a variety of indicators of secondary victimisation by state officials have been identified including:

(i) The Police Official - disbelieving and insensitive responses when women report sexual assault, discouraging or preventing women from laying charges, no immediate access to private waiting or report taking facilities, not taking statements in the language of complainant; insensitive treatment; lack of time and effort put into investigation, not providing women with information on procedures or updating on the investigation process, not providing protection from the perpetrator, not returning phone calls, biased criteria are used in deciding whether a charge is unfounded or needs to be closed, lack of women police officials and not providing women with copies of their statements.

(ii) Health Services Officials - long waiting periods before being medically treated, being seen by untrained and biased staff, district surgeons not following written guidelines for examinations, insensitive attitudes, allowing people who are not medical assistants into examination room, not explaining why certain questions need to be asked or procedures followed, refusing to examine certain women, no access to free treatment and support for immediate and long term physical or psychological consequences resulting from the sexual assault, inadequate and inaccessible procedures for legal abortions for pregnancies which are a result of rape.

(iii) Court Officials - lack of private waiting facilities, long time delays between reporting of incident and appearing in court, perpetrators being released on bail without adequate protection for complainant, prosecutors not consulting with complainants before trial, biased criteria used by prosecutors in deciding whether to prosecute or withdraw a case, not involving complainants in or informing them about decisions that are taken, not ensuring police have thoroughly investigated cases, inadequate preparation for court cases, not making use of expert witnesses, little or no information of court procedures or the progress of cases, not objecting to inappropriate cross-examination and inadequate sentences.

In court stereotypes of who is a genuine sexual assault survivor are reflected to deny, justify or excuse male violence and to blame women or question their credibility.

(ii)Equipment

3.35 The Criminal Law Amendment Act, 1991, also has as its objective the protection of witnesses under the age of 18 years who find giving evidence in criminal proceedings traumatic, which may result either in the witness not being willing to testify or in the case being dropped. Section 170A, of the Criminal Procedure Act, 1977, provides that when criminal proceedings are pending before any court and it appears to that court that a witness under the age of 18 years will be exposed to undue mental stress or suffering if he/she testifies at such proceedings, the court may appoint any competent person as an intermediary. Special equipment with regard to the giving of evidence through an intermediary was installed at 73 courts nationwide. Four "mobile units" are also available should a need arise for the use thereof at a court where a unit was not initially installed.

^[17] L Camerer "A victim movement for South Africa" in Policing the Transformation M Shaw, L Camerer IDP Monograph series No. 3 April 1996 at 31.

^[18] New South Wales Law Reform Commission Sentencing Discussion Paper 33 April 1996 411-412.

^[19] "Victim Policy and Public Support" J M Wemmers, Paper presented at the 6th European Conference on Psychology and Law, University of Siena, August 28-31 1996 at 12-13.