Criminal Procedure Act should prioritise victims of crime

April 2nd, 2024
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The Department of Justice and Constitutional Development hosted a three-day National Conference on the Integrated Criminal Justice System and the Review of the Criminal Procedure Act 51 of 1977 (the CPA). The Conference, which was held in Boksburg, consisted of the various institutions of law enforcement, chapter 9 institutions, the legal profession, the judiciary, as well as civil society. Robust discussions were held on how South Africa’s (SA’s) CPA can be improved to address the challenges the country is grappling with regarding crime and the laws that address crime.

One of the key issues raised at the conference included the victims’ rights and support. The issue of victims’ rights was often spoken about by different speakers, calling for a separate legislation that will focus on victims of crime. Another burning issue that was raised was bail conditions, with many calling for tighter bail conditions, especially on perpetrators committing serious crimes. It was highlighted that communities were not happy that those awaiting trial would be given bail and let back into their communities, leaving many witnesses feeling intimidated. However, while issues of bail are looked at, stakeholders should not overlook the issue of human rights.

The issue of an integrated system was also brought up, that the government, the private sector, business, and communities must guard against working in silos. That in order for SA to have an effective, seamless and practical integrated system of all role players, participation is vital. Another concern was the delays in criminal trials.

Minister of Justice and Correctional Services, Ronald Lamola speaking at the National Conference on the Integrated Criminal Justice System and the Review of the Criminal Procedure Act 51 of 1977.
Photo taken by: Jarius Mutle GICS

On the first day of the conference Minister of Justice and Correctional Services, Ronald Lamola, said the governing party, the African National Congress in 2024 elections manifesto calls on to defend democracy and advance freedom by keeping our homes and streets safe and protecting our borders. By creating a criminal justice that:

  • Takes a comprehensive approach to fighting crime through the Integrated Crime and Violence Prevention Strategy.
  • Modernises policing with more frontline police officers.
  • Highlights the critical role of communities in preventing crime and gender-based violence through adequate resourcing of Community Policing Forums.
  • Develops capabilities to combat cybercrime, essential infrastructure crimes, illegal firearms, gang violence, crime syndicates, human and drug trafficking, and corruption.
  • Provides additional capacity to the Hawks to tackle organised crime.
  • Implements a data-driven approach to target violent crime hotspots and direct police resources and personnel to areas with the highest crime rates.
  • Strengthens the justice system, including the National Prosecuting Authority (NPA), review the CPA, reducing case backlogs and delays, support the Board of Legal Aid South Africa to provide fair access to justice, introduce technology to make court procedures more efficient and accessible, and strengthen the protection of whistleblowers.
  • Ensures effective and humane incarceration of inmates, and, as part of a restorative justice approach, promote the rehabilitation and social reintegration of offenders.

Minister Lamola added that the journey to transform the entirety of the justice system continued when we manned the South African Law Reform Commission (SALRC) to review the Civil Proceedings Evidence Act 25 of 1965, the Insolvency Act 24 of 1936, the repeal of the apartheid-era legislation and the CPA, which is as part of this transformative journey.

Mr Lamola pointed out that the review of the South African criminal justice system includes among others, work done by the SALRC in respect of the law of evidence in civil and criminal proceedings. For instance, a review of the law of evidence was included in the SALRC’s research programme soon after its establishment in 1973. He added that the Commission’s original intention was to codify the South African law of evidence in its entirety and to consolidate it in one Act. However, the Commission gradually realised the enormity of such an undertaking and abandoned the codification of the law of evidence. Mr Lamola added that the Commission decided rather to ascertain which aspects of the law of evidence were unsatisfactory or did not meet current needs, and to formulate suggestions for their reform.

Mr Lamola pointed out that in 2003 in a preliminary study by the SALRC, Professor PJ Schwikkard identified several areas of law for possible reform and outlined these in Committee Paper 1024: Project 126 – Review of the Law of Evidence, 2003. The areas under discussion included the following –

  • the principle of relevance;
  • the approach to hearsay evidence; and
  • various structural features of the court system (that is, the limited role of lay assessors and the adversarial nature of proceedings.)

Mr Lamola added that the Committee Paper 1024 recognised that the function of the law of evidence differs in civil and criminal trials and that there are different policy considerations underlying each. Whereas civil trials are intended to resolve disputes to order relationships, criminal evidence and procedure is ‘an applied branch of moral and political philosophy’ in which the rights and responsibilities of citizenship are articulated.

Mr Lamola said that as a point of policy therefore, the paper concluded ‘that a more cautious approach’ should be taken to the admissibility of evidence in criminal trials. That preliminary study was followed by Issue Paper 26: Review of the Law of Evidence and Discussion Paper 113: Review of the Law of Evidence (Hearsay and Relevance). Both papers were published in 2008. He added that Issue Paper 26 identified several issues in theory and in practice for further investigation and review. These included issues related to the concepts of real evidence, documentary evidence and computer-generated evidence.

Mr Lamola said: ‘As we build upon that foundation, it is crucial to address the pressing issues of crime and violence in South Africa. The urgency to progressively and effectively expedite the delivery of criminal justice, and to promote constitutional imperatives in the justice system remain sacrosanct. … We must also be able to respond to the criticism that criminals have more rights than the victims, trust in the system when victims see their rights being protected and justice served.’

Mr Lamola said that communities live in constant fear, plagued by gangsterism, armed robberies, rape, and murder. He pointed out that women and children are particularly vulnerable to the violence inflicted upon them by men. He added that furthermore, Southa Africa’s economy suffers due to damaged infrastructure, extortion at construction sites, corruption, the growth of illicit activities, and the high costs of securing businesses and assets.

Mr Lamola said: ‘As early as 1996, the then Minister of Justice, the Late Honourable Dullah Omar,  and the then Police Minister embarked on the transformation project, resulting in the National Crime Prevention Strategy aimed at moving the criminal justice system from a narrow focus on repressive crime control to one that recognises that crime does not occur in a vacuum but emerges, in most instances, from societal ills. The function or object of the criminal justice system is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society.’

Mr Lamola added that the modernisation of the relevant criminal justice services, from the integration of data, to the efficiency of the forensic services, to the use of technology to deal with criminal investigations, and to even hybrid witness appearance in order to protect victims, and to so many other areas of our justice system, which this conference would have to address. He said that a victim-centred approach in the criminal justice system is crucial for several reasons. He pointed out that firstly, it recognises the importance of prioritising the well-being and rights of victims. He added that ‘victims of crime often experience significant physical, emotional, and psychological trauma, and it is our responsibility to ensure that they are treated with compassion, empathy, and respect.’

Mr Lamola said that by adopting a victim-centred approach, ‘we can create an environment where victims feel supported and empowered throughout the entire process. This means providing them with information about their rights, the legal process, and available support services. It also means involving them in decision-making processes that directly affect their case, such as plea bargains or sentencing.’

Mr Lamola added that a victim-centred approach acknowledges that victims have unique needs and experiences that must be addressed. He added that this includes providing them with access to counselling, therapy, and other support services to help them cope with the aftermath of the crime. He said it also means taking into account any specific vulnerabilities or circumstances that may impact their ability to participate fully in the legal proceedings, such as language barriers, disabilities, or cultural differences.

Mr Lamola pointed out that a victim-centred approach in SA’s criminal justice system is imperative. That it is not only ensures that victims are respected, supported, and empowered, but it also helps to uphold their dignity and rights. He added: ‘By working together to prioritise the well-being of victims, we can create a more just and compassionate system that truly serves the needs of those who have suffered harm.

Keynote speaker, Deputy President, Paul Mashatile speaking at the National Conference on the Integrated Criminal Justice System and the Review of the Criminal Procedure Act 51 of 1977
Photo taken by: Jarius Mutle GICS

said that as SA celebrate 30 years democracy with General Elections taking place on is an opportune moment for SA to reflect on the criminal justice system in the context of the rights enshrined in the Constitution, and the founding provisions of human dignity and the advancement of human rights and freedoms.

Mr Mashatile noted: ‘I believe that the criminal justice system serves as the bedrock of every democratic society, ensuring the protection of individual rights and the maintenance of order. For many years, the integrated criminal justice system and the CPA have had a profound impact on how we handle law enforcement, prosecution, and adjudication in South Africa.’ Mr Mashatile pointed out that SA must examine the current legal framework and identify areas that require transformation or amendment. He added that South African laws must be responsive to the changing needs of society and aligned with international standards.

Mr Mashatile explained: ‘In this regard, our Constitution guides us on the ongoing path of transformation, which has proven to be dynamic, challenging, but also producing some positive outcomes as it relates to improving the lives of South Africans. Likewise, the criminal justice system and all its constitutive parts are on a transformative journey requiring us to assess where we come from, where we now are, and where we are headed’.

Mr Mashatile added that currently, SA’s criminal justice system and democracy have been put to the test due to widespread corruption, criminality, gender-based violence and femicide. He added that crime remains persistent despite the many strategies we have devised to fight it, such as increased police presence, community policing initiatives, and technological investments in surveillance and evidence collection.

Mr Mashatile added that the legal system in SA has undergone significant changes since the apartheid era, aiming to ensure fairness and equal opportunities for all citizens. Post-1994, changes include a National Crime Prevention Strategy, victim empowerment programmes, and a diversion programme for low-impact offenses under Pillar 1, to ensure a human rights culture. He added that the 1996, National Crime Prevention Strategy was replaced with the Integrated Crime and Violence Prevention Strategy (ICVPS), approved in March 2022 by the Cabinet. This strategy focuses on preventing crime and violence through a ‘whole of government’ and ‘whole of society’ approach.

He pointed out that it outlines a comprehensive collaborative framework for crime and violence prevention in the country, focusing on six interdependent and interrelated pillars, which are –

  • an effective criminal justice system;
  • early interventions for crime prevention;
  • victim support interventions;
  • effective and integrated service delivery;
  • safety through environmental design; and
  • active public and community participation.

Mr Mashatile noted: ‘We cannot overlook the issues that are endangering our economy, particularly in the construction sector. Murderous construction mafias have brought many companies to their knees, and we must fight back to safeguard this industry. A concerted effort from all is necessary to unravel the complex web of construction site disruptions, which endangers lives and impedes the government’s objective of transforming the nation into a massive construction site that generates employment and expands the economy.’

Mr Mashatile said government have put fighting crime and corruption as a top priority because it undermines human rights and the rule of law. He added that government is tackling significant commercial and serious organised crime through the developed Anti-Corruption Task Team (ACTT) and the Directorate for Priority Crime Investigation Operational Committee, currently known as the National Priority Crimes Operational Committee (NPCOC) under the South African Police Service Act 68 of 1995.

Mr Mashatile said: ‘Through the Integrated Task Force, we are coordinating the implementation of 205 recommendations for criminal investigations made by the Zondo State Capture Commission. As it stands, three convictions secured and 11 cases are currently before court relating to 36 recommendations. The remaining recommendations are still under investigation. Despite these crime intervention strategies and other initiatives, it is concerning the most recent Statistics South Africa Victims of Crime Survey indicates that confidence in our criminal justice system is declining.’

Mr Mashatile noted in the next few months, the Justice, Crime Prevention and Security Cluster (JCPS) is strategically planning key interventions from multiple departments to address the prevailing crime situation. Focusing on combating violent and organised crime, with a dedicated emphasis on addressing corruption, and among other things:

  • Maintaining targeted efforts to address gender-based violence and femicide and its impact on individuals and communities.
  • Establishing an independent entity called the Investigating Directorate Against Corruption within the National Prosecuting Authority (NPA).
  • Enhancing the effectiveness of the ‘Whistle Blowers Act’ (Protected Disclosures Act 26 of 2000).
  • Finalising revisions to the CPA to bolster efforts to combat both crime and corruption.

The Minister of Police, Bheki Cele speaking at the conference said there is a feeling among communities that the South African justice system is more sympathetic to perpetrators rather than victims of crime. He suggested that there should be systems created, starting with the laws, that protect victims of crimes more than perpetrators. He also emphasised the protection of whistle blowers, and witnesses. He pointed out that as South African Police Service (SAPS) they are more concerned about witnesses, because if witnesses fall off on a case, then the case falls off. ‘We would love to see the law really getting tight on protecting witnesses. Sometimes witnesses feel that we do not take care of them, when sometimes they lose everything for us to win cases’, Mr Cele said.

Chairperson of the Advisory Committee on Criminal Procedure Reform Investigation, retired Judge President Francis Legodi of the Mpumalanga Division of the High Court, said that the SALRC has a very important role to play in the constitutional society. He added that Minister Lamola on , while addressing a lecture to the then chairperson of the Commission, requested the commission to include in its investigation the reform of the criminal procedure as part of a review of the criminal justice system. He said that in that request letter terms of reference were said, para 3.2 of the terms of reference states that the purpose of review of the criminal justice system is to to accelerate and overhaul the CPA.

The overhaul of the CPA and related legislation should include but is not limited to –

  • bail reform generally;
  • reform of arrest dispensation;
  • to reform the parole laws;
  • a reform of the expungement of criminal records;
  • to reform all laws of general importance;
  • a reform and alignment of justice of peace dispensation; and
  • review and reform laws relating to JCPS.

He said in para 2.2 of his letter written 26 August 2021, Minister Lamola expressed and simplified the terms of reference as follows: There is a need to review the criminal justice system regime in its entirety to reflect the modern, transformed, accessible, efficient, and integrated criminal justice system. The envisaged legislation should encompass, broad policy principal such as –

  • human rights as entrenched in the Bill of Rights;
  • access to justice, which must be ensured at all stages of reformation of the criminal justice system;
  • needs of society today, including of organisations of the law should be reflected;
  • the rights of victims of crime should be promoted, protected, and enforced in order to create victims’ safety criminal justice system; and
  • governance and accountability mechanism must be strengthened.

On 13 December 2023, Minister Lamola appointment an Advisory Committee on Criminal Procedure Reform Investigation in terms of section of s 7A(1)(b)(ii) of the South African Law Reform Commission Act 19 of 1973. The committee is one of the flagship projects of the SALRC. The investigation entails a comprehensive review of the CPA and all other apartheid-era legislation that concerns the conduct of criminal trials in the lower and superior courts. The review of the Act constitutes one of the priorities of the sixth administration enshrined in the Medium Term Strategic Framework, 2019-2024. It is critical to government’s quest to creating an accessible, effective, and modern criminal justice system that ensures fair and just resolution of criminal infringements for accused persons and victims of crime alike. The investigation will culminate in a new Act that will repeal the outdated CPA.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

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