DAY -9 The S African justice system

The Situation and the System

South Africa has one of the highest rates of violent crime in the world; nearly 20 000 people were murdered in the year 2004/05 (in a population of around 45 million). With close to 400 out of every 100 000 people in prison, South Africa also has one of the highest incarceration rates in the world. These two statistics are at some level connected, as with a high crime rate, it is to be expected that the numbers of those in prison will also be high.

However, international comparisons show that crime and imprisonment rates have only a limited correlation, if any. It is also not the case that all those in prison in South Africa are necessarily those who should be there: many violent crimes do not lead to arrest and conviction of the perpetrator; and many of those in prison are there awaiting trial, or for relatively minor offences where other punishments would be far more suitable. In particular, despite some innovative diversion programmes, several thousand children (mostly aged 16 or 17) are still in prison, an environment in which they are likely simply to be trained for a life of crime.

Sentencing

Demands for effective action against crime have also brought calls for harsher punishments for sentenced criminals. Though politicians have resisted demands to overturn the Constitutional Court’s early ruling that the death penalty is unconstitutional, in 1997 Parliament passed legislation introducing minimum sentences ranging from five years to life in prison for a variety of serious offences, including corruption, drug dealing, assault, rape and murder. A court may impose a lesser sentence if ‘substantial and compelling circumstances’ exist (which saved the legislation from a Constitutional Court ruling that it did not comply with the Bill of Rights). This hastily drafted law bypassed a review of sentencing guidelines being conducted by the Law Reform Commission at that time, and there was little public consultation about its detailed content or consideration of its effects.

The impact of the minimum sentencing rules on crime is difficult to quantify. However, no substantive claims have been made that crime has been reduced as a result, while fear of crime during the period it has been in operation has actually increased. More relevant to the crime rate is likely to be the probability of being caught rather than the length of sentence at the end of the criminal justice process. The minimum sentencing rules have also not achieved one of their primary aims, an increase in consistency of sentencing. Meanwhile, prison overcrowding has been exacerbated by the vastly increased number of prisoners serving long sentences: the number of prisoners serving life sentences, for example, jumped from 638 in 1997, to 5 511 in 2004.

Moreover, the overcrowding in prisons resulting from a high incarceration rate undermines the potential role of incarceration in the rehabilitation of criminals, a role declared in South Africa’s new Correctional Services Act. In this way, crime and punishment in South Africa appear to be locked in a vicious cycle of cause and effect, with first-time offenders and even innocent accused spending long months in deplorable conditions before they are eventually released or stand trial.

The photograph shows the court buildings in East London, South Africa where the court case will be heard

All the text above is extracted from South Africa: Justice Sector and the Rule of Law, published 17 February 2006 as part of the AfriMAP initiative

The full text of the 1997 Criminal Law Amendment Act discussed under Sentencing above is rather long and confusing, but reading page 12 of the pdf on 'Minimum sentences' and Schedule 2 Part I and II starting on page 23 will give you some idea of the possible outcomes of my mother's case.