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Twenty years of justice reform in South Africa: what is there to show for it?
23 July 2013

'South Africa's system of criminal justice is in a crisis. If its ability to prevent, process and deter crime is any measure of its effectiveness, then reforming the system is now not only a necessity but a national priority. Unfortunately, the system is not easily fixed; it is not characterised by a single problem that can be resolved speedily, but is characterised by blockages, many of which cause delays in other parts of the criminal justice pipeline'.

For many, these words by Dr Mark Shaw in an Institute for Security Studies publication ring as true today as they did in 1996 when first published. After twenty years of democracy, it is fair to ask whether South Africans believe that the criminal justice system (CJS), and in particular the courts, has become accessible, effective, fair and impartial. If the latest Human Sciences Research Council (HSRC) findings are anything to go by, the more than R600 billion invested in the CJS since 2001 has not resulted in continuous improvements when it comes to public perception.

Using the annual South African Social Attitude Surveys, the HSRC has analysed trends in the level of trust that citizens place in the courts over a 15-year period from 1998. Interestingly, there were significant increases in the levels of trust in the courts between 2000, when only 37% of South Africans said that they had trust in the courts, and 2004, when trust levels peaked at 58%.

However, trust in the courts then deteriorated until 2007 when they hit a low of 49%, before starting to increase again, reaching a high of 57% in 2009. While we can only speculate as to the reasons behind these trends, the peaks appear to coincide with election years when the promises of new administrations created hopes of better government services.

Nevertheless, aware that the CJS was not functioning optimally and that public perceptions were deteriorating, the government undertook an in-depth review to identify the key challenges. This resulted in the Seven-Point Implementation Plan, which at the time was driven by an energetic Deputy Minister of Justice and Constitutional Development, Johnny de Lange. The plan provided a clear and practical roadmap for the establishment of a ‘single, integrated, seamless and modern criminal justice system’. De Lange did a great job of both rallying the different CJS departments behind the implementation of the plan and ensuring that the public became aware of government’s intentions to fix the problems.

This all changed abruptly with the introduction of a new administration following the 2009 elections. The government ceased to give the plan publicity and the CJS appeared to be thrown into turmoil as poor political appointments were made to the senior echelons of the police and the National Prosecuting Authority (NPA). Since then trust levels have declined so that in 2012, exactly half (50%) of citizens displayed some level of trust in the courts. Of course, ongoing and unjustified attacks on the courts by senior African National Congress (ANC) and government officials may also have weakened public confidence among certain constituencies.

An in-depth analysis by the HSRC suggests that disadvantaged and vulnerable groups are less likely to perceive the justice system as impartial and fair and ‘therefore, were found to be less trusting of the courts’. About two in five respondents (44%) believed that the courts would be more likely to find persons guilty if they were black and 51% felt people were more likely to be found guilty if they were poor. Only a little more than one in three (38%) felt that the rich and the poor would be treated equally before the criminal courts.

Recognising the challenges facing the criminal justice system, the National Development Plan 2030 (NDP) has recommended that immediate action be taken to continue the implementation of the seven-point plan in an effort to improve public confidence in the courts. The NDP also urged that several processes be put in place before the plan’s implementation:

  • Departments in the Justice, Crime Prevention and Security (JCPS) cluster must immediately align their strategic plans with the seven-point plan.
  • The project manager appointed to the Office for Criminal Justice System Reform must coordinate the plan’s activities and programmes to ensure that the JCPS departments implement the seven-point plan in a synchronised manner.
  • Dedicated budgets for each participating department must be established and outcomes reported on in relation to the plan.
  • Continuous monitoring by the JCPS cluster and regular reporting on the plan’s implementation is needed.

Interestingly, while it may not be receiving much publicity, steps are being taken by the JCPS to implement the NDP’s recommendations. The Strategic Plan of the Department of Justice and Constitutional Development (DoJ) for 2013 to 2018, released in March 2013, indicates that progress has been made as follows:

  • The Regional Court Protocol, the Case Finalisation Protocol and the Trial Efficiency Court Protocol have been implemented through the JCPS cluster.
  • A cluster delivery agreement was signed in 2010 as part of government’s Programme of Action. This agreement incorporates the implementation of the seven-point plan and progress is said to have been made to ensure greater coordination among cluster partners.
  • Processes are under way to review the alignment of the magisterial districts with municipal boundaries, where this is desirable and feasible to enhance access to justice.

Implementation of the seven-point plan is driven by the Office for Criminal Justice Reform, based in the DoJ. A critical component of the plan is the establishment of the Electronic Case Management System (ECMS) to ensure better management of crime information across the various criminal justice departments. This would allow for blockages or shortcomings in the system to be more effectively identified and fixed.

Unfortunately, however, it seems doubtful that the ECMS is anywhere near to being ready. This emerged in parliament on 20 April 2013 when the Portfolio Committee on Police lambasted South African Police Service (SAPS) officials when they said that the system was still being developed – 11 years after its implementation was agreed upon –and that it may take 10 more years to be fully operational.

In the meantime, officials in the JCPS cluster drive the process as best they can. However, the delays experienced since the launch of the plan demonstrate that high-level political champions are required to monitor and drive it. Worryingly, senior political leaders in government appear to be more concerned with reviewing the judgements of the Constitutional Court and Supreme Court of Appeal, which will not tell us how to improve the justice system, and passing legislation that may weaken the independence of the legal fraternity. Ideally, the ministers involved in the criminal justice system should be seen to be at the forefront of driving the implementation of the seven-point plan to improve the efficiency of the criminal justice system. Until then, we are unlikely to see demonstrable improvements in the near future.

Lizette Lancaster, Manager: Crime and Justice Hub, Governance, Crime and Justice Division, ISS Pretoria

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