Criminal Law Committee meeting summary 

May 1st, 2024
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By Kevin O’Reilly

The Law Society of South Africa’s (LSSA) Criminal Law Committee (the Committee) met on 20 March 2024 to discuss a number of issues within its area of specialisation. The following were among those issues discussed.

Problems experienced with the transcription of court records

The delay in the transcription of court records is a significant issue. Matters are frequently delayed due to the inability to get the records typed. Previously, transcription companies would offer urgent services with a turnaround time of 24 to 48 hours for a higher fee. Alternatively, if one could wait a week or two the cost would be lower. However, it was always possible to obtain the transcription in that period of time. Another issue is that court records go missing at court. Thus, it is not just the transcription process that encounters challenges, but also the storage of court records. Another concern is the matter of cost. The Committee observed that sometimes the cost can be a few hundred thousand rands. The inefficiency in transcriptions can result in delays and incomplete records, which is partly attributed to the transcription process itself but also the court system. The transcription company often cites that they did not receive the disk from the court. The Committee resolved to write to the Deputy Director-General and raise all these concerns. The Committee noted that this matter was also raised at a National Operations Committee (NOC) meeting, which is the working committee of the National Efficiency Enhancement Committee (NEEC). The NOC will escalate the matter to the NEEC.

The holding of Regional Efficiency Enhancement Committees, Provincial Efficiency Enhancement Committees and NEEC meetings

The Committee emphasised the significance of having a presence from the LSSA at these meetings due to their comprehensive understanding of issues spanning from the lower courts to the Constitutional Court. Concern was expressed over the LSSA being denied entry to some PEEC meetings. The LSSA intends to approach the Judges President concerned and request permission to attend. The Committee also asked for a list of LSSA representatives who participate in these meetings across the different provinces. However, it was acknowledged that it is preferable for representatives from the Provincial Associations to be present, as they are responsible for addressing issues at the local level before they are escalated to other structures.

The PEECs strive to resolve issues at the provincial level first. Only if they are unable to resolve them, would they be escalated to the NEEC. This approach is similar to the agreement in place with the Provincial Associations, where they address local problems internally. If they are unable to do so, they can then forward them to the LSSA for further action.

After hours detectives at police stations

This issue was raised in De Rebus (see ‘After hours bail applications and the availability of detectives at police stations’ 2024 (Jan/Feb) DR 10). The Committee received comments from practitioners who are facing problems with contacting detectives after hours. The Committee recommends that legal practitioners contact police legal services at provincial level and ask for the list of detectives.

The Committee noted another problem was that the police are reluctant to release people detained on police bail and prosecutors are only allowed to grant bail in respect of schedule 7 offences. Therefore, legislative amendments are necessary to allow prosecutors to grant bail.

A suggestion was made that the LSSA write to the provincial offices of South African Police Service, requesting them to make available the lists of detectives who are on duty after hours. Once obtained, the LSSA can distribute these lists to the Provincial Associations who can then assist from there.

LSSA engagement with the legal profession and public

The Committee discussed making educational videos for the public and/or the profession, to be filmed and shared on the LSSA’s YouTube channel. Previously, the Committee recorded a video addressing the topic of ‘Admission of Guilt Fines’.

Acting appointments in the High Court

It was noted that more Judges President are asking the profession for candidates for acting appointments. Additionally, legal practitioners were asked to act on a pro bono basis to help with the backlog at the Labour Court in Gauteng.

Senior counsel status for all legal counsel

On 4 January 2023, the Uniform Guidelines on Conferral of Senior Attorney and Senior Counsel Honours on Eligible Legal Practitioners were approved. The guidelines form the primary procedure for the consideration of any senior legal practitioner status in the country. The guidelines were published in the Government Gazette on 13 March 2024 (see Editorial ‘Uniform Guidelines on conferral of Senior Attorney’ (2024 (April) DR 3)).

Challenges experienced with prison consultation facilities

The Committee aims to draft a letter to the National Commissioner of Correctional Services regarding consultation facility challenges in correctional centres. The Committee invites De Rebus readers to provide feedback on issues encountered in prison consultation facilities across South Africa, including difficulties in contacting prisons, scheduling consultations, and communicating with staff. Concerns include inadequate privacy and lack of consultation facilities. The Committee acknowledged that the consultation facilities at Westville Prison in KwaZulu-Natal are satisfactory.

Proposal for judicial training

The Committee discussed leading an initiative to potentially develop a course to train magistrates or acting magistrates, particularly in handling bail applications. This will alleviate backlogs in the High Court caused by unnecessary appeals. The Committee suggested that the LSSA’s Legal Education and Development (LEAD) department could offer training for aspiring judges or magistrates focusing on protocols rather than legislation. It was noted that the LSSA used to provide judicial training in collaboration with the National Association of Democratic Lawyers (NADEL).

Loadshedding and the impact on legal practitioners

The LSSA has appointed a Task Team to deal with this issue. The Task Team resolved to undertake a survey to establish the impact of load shedding on the judicial system in South Africa. Thereafter, recommendations will be made to the LSSA for possible interventions, which may include writing to the relevant Ministers and the Chief Justice. The LSSA considers joining as amicus curiae in the matter of United Democratic Movement and Others v Eskom Holdings SOC and Others (case no 005779/2023), should the opportunity arise.

It was reported that the NEEC has an infrastructure subcommittee tasked with addressing, inter alia, challenges faced due to loadshedding. Many magistrates’ courts are equipped with generators, and efforts are underway to explore the possibility of installing inverters. However, budget constraints need to be taken into consideration.

Safety of all legal practitioners at court

The Committee noted that the NEEC established a subcommittee to address the issue. This is also a standing item on the agenda of several PEECs.  The Committee is also concerned that the lack of parking at courts is a security risk.

High Court backlog of trials

The backlog of trials in the High Court is of great concern to the Committee. The LSSA will gather input from the provinces in this regard and propose some intervention, which might include approaching the Justice Portfolio Committee.

Criminal Law Committee Members: William Booth (Chairperson), Amanda Vilakazi, Avinash Maharaj, Dr Llewelyn Curlewis, Odwa Mgxaji, Tshepo Thusi, and Zincedile Tiya.

 

Kevin O’Reilly MA (NMU) is a sub-editor at De Rebus.

­This article was first published in De Rebus in 2024 (May) DR 12.

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