Justice Symposium - The Judiciary and the Criminal Justice System

The Helen Suzman Foundation, in association with the Open Society Foundation for South Africa, hosted its second Justice Symposium. The second Symposium explored the Judiciary and the Criminal Justice System. Adv. Menzi Simelane, Judge Azhar Cachalia, Judge Thami Makhanya and Prof. Stephen Tuson offered their particular insights to the challenges the Criminal Justice System faces in South Africa and the types of efforts they would like to see taking place to overcome these challenges.

 

The Helen Suzman Foundation The Judiciary and the Criminal Justice System 28 October 2010 South Africa has a crime problem! However, the integrated system which has the responsibility of dealing with crime is also seemingly wrought with problems of its own. These problems constrain the system’s ability to prevent and combat crime effectively in South Africa. Questions abound in editorials, on radio shows and around dinner tables on just what is being done to address these problems.   The Helen Suzman Foundation organises and hosts public fora to discuss serious issues affecting South Africans. The Foundation’s second Symposium on Justice was held on 28 October. The focus was on the Criminal Justice System. Advocate Menzi Simelane (National Director of Public Prosecutions), Judge Azhar Cachalia (Judge of Appeal), Judge Thami Makhanya (Judge of the High Court) and Professor Stephen Tuson (Wits University) addressed a large gathering in Johannesburg.     Adv. Simelane stated from the outset that the administration of justice resides with the executive, and that the exercise of the judicial function is a part of the administration of the criminal justice system. The judiciary administers the processes of judicial functions and these processes in turn contribute to the running of the entire system. If these discrete processes do not perform properly, the system suffers, as when, for example, the police or the prosecutors do not carry out their functions properly.   Among the constraints which Adv. Simelane pointed out as severely impacting on the criminal justice system, were the sheer number of cases reported to the police. He stated categorically that no amount of extra resources would bring this number down. At the root of the problem was a misunderstanding about the causes of crime and the attitude of those in the system towards crime prevention. Adv. Simelane argued that there needed to be a change in the discourse about the causes of crime and the correct measures to deal with these causes. This, he suggested, would help to inform a change in the mindset of South Africans which would help to build some degree of accountability. Adv. Simelane stressed that crime needed to be de-politicised, as it affected everybody, regardless of political affiliation, race or class.   Given his previous role as Secretary for Safety and Security, Judge Cachalia of the Supreme Court of Appeal, focused his deliberations on Policing in particular. He had been responsible for the redefining of the role police were to play in the newly democratic South Africa. He oversaw the de-militarization of the police force into a police service focused on safety and security instead of law and order. His primary concern was with the re-militarization of the police under the new government, which he labelled as regressive.   Judge Cachalia argued that the assumptions for this move were not only wrong but potentially dangerous. This move goes against the trend in modern policing all over the world. He suggested that the major problem facing the police is inadequate training. Military titles will not overcome this problem, but may actually compound it, given that the combination of poor skills and arms is potentially very dangerous.   In this situation police violence may actually escalate when supported by the incendiary statements made by those who exercise political responsibility for policing. Judge Cachalia was also disturbed by perceptions that the police and prosecuting authority are mere instruments of the governing party, or factions of that party. He argued that serious action was needed to counter this view.

The political deployment of individuals who lacked the requisite skills and experience to perform these tasks was crippling the effectiveness of the system to be responsive to the citizenry. He concluded that a number of issues also needed to be addressed and, in particular, sentencing policy, as it compounded the problem of overcrowded prisons and rehabilitation.   Judge Thami Makhanya argued that, the Criminal Justice System is there to regulate or administer the powers of the State and the rights of the accused. This regulation or administration is conducted by the judiciary. The task of the judiciary is to strike a balance between the powers of the Executive and the rights of the accused with the aim of making life bearable for the accused while not limiting the ability of the State to effectively control crime.   Neither the State nor the citizen can enjoy absolute power or absolute rights. Compromise is essential to promote the public good. Judge Makhanya highlighted the important role the judiciary plays in maintaining the principle of legality. Without this, the foundations for liberty do not exist. He proffered a number of key interventions to enhance the effectiveness of the criminal justice system. Key among these was the need for government to upgrade the skill levels of detectives in order to enhance the investigation of crimes as this gives impetus to successful prosecution.   Also, the law had to be applied consistently and equally to all citizens, regardless of position or authority. Only then would confidence in the criminal justice system be inspired.   A call for accountability across the entire system was made for by Prof. Stephen Tuson of Wits University. He argued that the core reason for the breakdown in the effectiveness of the system was due to the erosion of accountability across all departments. Poor detective work which resulted in failed prosecutions was not dealt with.   Poor work done by any part of the system resulted in postponement of cases. This meant that the system became clogged and could not function as it is supposed to. Yet, nothing happened to those who are responsible for the delays or the poor work. Tuson also argued that it may now be appropriate for the South African judiciary to adopt a more inquisitorial approach during hearings.   This would give judicial officers more power to hold accountable those people who simply do not adequately prepare for court hearings.   While there was a general consensus around the issues plaguing the system, there needs to be much more focused dialogue on strategic interventions which will enhance the system. Adv Simelane pointed out the World Cup as an instance when all South Africans, including those working in the criminal justice system, were united behind one cause, the successful hosting of the World Cup. It is time South Africans became united behind the fight against crime, as it affects us all equally.