(DOC) The Crisis of Criminal Justice in South Africa

Continues the advocacy for systemic improvements in criminal justice enforcement and administration, rather than futilely imposing minimum and other harsh sentences, as a means of addressing the crisis of criminal violence in South Africa, which was also the focus of my UWC lecture in October 2017.

University of Cape Town Faculty of Law The Bennie Rabinowitz Lecture Wednesday 11 September 2019 17h00 The Crisis of Criminal Justice in South Africa* *I am greatly indebted to my law clerk, Rebecca Gore, for extensive help in drafting and referencing this lecture. Introduction: Why this still matters so much to us all Originally, I entitled this lecture “Crisis? What Crisis? Why Criminal Justice is Failing All in South Africa”. That was a short week or two ago. Then the tragedy of Uyinene Mrwetyana hit us. The anguish of a tender, promising, physically vulnerable woman at this University, her life brutally ended, in unspeakably nightmarish moments, by the exertion over her of ghastly destructive male dominance, has shocked us all to the core. It has elicited a national outpouring of grief and rage – and, rightfully, a new demand for answers from our criminal justice system. A whimsical or ironical title no longer seems appropriate. Things are too deadly – deathly – serious. I changed the title from that advertised to “The Crisis of Criminal Justice in SA”. Bennie Rabinowitz has personified the spirit of generous inquiry, social commitment and deep personal humility that we need to address tonight’s topic. It is a signal privilege for me to deliver this lecture in his honour. Bennie, personally, I thank you for your unfailing warmth and support over the years, where I have perceived you to express support for various of my heterodox causes and views. A call unheeded I start by looking back two years. In 2017, at the University of the Western Cape (UWC), I delivered a lecture Edwin Cameron “Imprisoning the Nation: Minimum Sentences in South Africa” (Dean’s Distinguished Lecture at the University of the Western Cape ,19 October 2017) available at https://www.concourt.org.za/images/phocadownload/justice_cameron/UWC-Deans-distinguished-lecture-19-October-2017--Minimum-Sentences.pdf. aimed at confronting a controversial, and often overlooked crisis – the criminal justice system, in particular the minimum sentencing regime. My lecture was titled Imprisoning the Nation: Minimum Sentences in South Africa. My central thesis was that minimum sentences were no response at all to curbing crime in South Africa and to making our people – vulnerable young people like Uyinene – safe at all. The minimum sentencing regime, I argued, is a poorly thought out, misdirected, hugely costly and above all ineffective way of punishing criminals and dealing with crime. Id at para 18. I suggested that the minimum sentence legislation was an extravagant mistake – a mistake of science and understanding and policy and social response. The reasons lie deep in our history, and our continuingly ineffectual efforts to grapple with it. Tonight, I consider why we are still stuck with minimum sentences when they are demonstrably useless and counter-productive. I consider why our prisons are not places of rehabilitation but overcrowded penal institutions. I find the reasons in our broken history, in the inefficiencies of coherent decision-making in our present political leadership, our dismaying lack of institutional competence and the fact that minimum sentences themselves, through their false promise, divert us from finding more efficient solutions. How we got minimum sentences During apartheid, prisons were referred to as “universities of crimes” or “criminal headquarters.” Department of Correctional Services Draft White Paper on Corrections in South Africa (December 2003) at p 6. The prison system, based on the Prisons Act 8 of 1959, was strictly segregated racially. Id at p 21. The death penalty was regularly enforced – at its height, more than three times a week, in Pretoria. Before apartheid officially ended, South Africa reconsidered its approach to crime and punishment, viewing prisoners as more entitled to human rights. Dissel and Ellis “Reform and Stasis: Transformation in South African Prisons” (2002) Critique Internationale at p 139. A transition from a punitive to a restorative justice approach was heralded by the change in mandate, legislation, and policies towards prisoners. Department of Correctional Services The White Paper on the Policy of the Department of Correctional Services (1994); Correctional Services Act 111 of 1998 and the Department of Correctional Services White Paper on Corrections in South Africa (2005) develops policies and regulations that endorse this restorative approach. The mandate of the Department of Correctional Services was to provide facilities, conditions, opportunities and services for prisoners that would be conducive for rehabilitation and their reintegration as law-abiding citizens. The Department of Correctional Services emphasis on rehabilitation of prisoners, was later defined and reiterated in the White Paper (2005) at p 38: “[r]ehabilitation should be viewed not merely as a strategy to prevent crime, but rather as a holistic phenomenon… [r]ehabilitation is achieved through the delivery of key services to offenders, including both correction of the offending behaviour and the development of the human being involved”. The transformation of apartheid prisons can be traced back to 1988, before the transitional negotiations. White Paper (2005) at p 28. Prison services were relocated from the Department of Justice and renamed the Department of Correctional Services Prior to May 2014, Department of Correctional Services was a separate department and the Justice Department was named the Department of Justice and Constitutional Development. reinforcing the notion that the Department was no longer a security service but rather a public service. The rights enshrined first as fundamental rights in the interim Constitution, and then in the Constitution’s Bill of Rights, embody this transformation. It was vividly encapsulated in a Report of the newly-established South African Human Rights Commission produced in 1998. South African Human Rights Commission Report of The National Prisons Project of the South African (29 August 1998) available at https://www.sahrc.org.za/home/21/files/Reports/The%20Nationals%20Prisons%20Project%20of%20SAHRC.1998.pdf. The Commission shortly after its establishment decided in 1996 to launch an inquiry into prisons in South Africa. In the Foreword, the Commission’s chairperson, Professor Barney Pityana, says optimistically that the duty of the Commission is “to develop a different calibre of prison system that would be consistent with our new Constitution and with international norms and standards”. Id at p 3. Halcyon days, reflecting the purpose and hope we all then felt. In the same upwards into-the-light spirit, the Constitution provides that prisoners, including both remand detainees and sentenced offenders, have the right to “conditions of detention that are consistent with human dignity”. Section 35(2)(e) of the Bill of Rights. This provision requires that, at a minimum, prisoners should have access to — exercise, adequate accommodation, nutrition, reading material and medical treatment. The Constitution also seeks to protect inmates from cruel, inhuman or degrading treatment or punishment. The Correctional Services Act as well as Correctional Services Regulations elucidates on these. Section 12(1)(e) of the Bill of Rights and in fulfillment of these guarantees, the Correctional Services Act stipulates that correctional centres must have, among other things: Section 7(1) of the Correctional Services Act: sufficient space to enable inmates to move freely and sleep comfortably within the confines of their cells and accommodation that is properly ventilated; Section 3(2)(c) of Correctional Services Regulations 2004 as amended on 25 April 2012: cells with sufficient natural and artificial lighting that allows inmates to read and write; Section 3(2)(d) of Correctional Services Regulations 2004 as amended on 25 April 2012: sufficient and accessible ablution facilities available to all inmates at all times, including access to hot and cold water for washing purposes; Section 3(2)(e) of Correctional Services Regulations 2004 as amended on 25 April 2012: a separate bed and bedding for every inmate which provides adequate warmth for the climatic conditions and which complies with hygienic requirements Many of the new leaders of democratic South Africa had experienced prison or the real threat of it. The new President, Nelson Rolihlahla Mandela, had served 27 years in apartheid’s prisons. The new, eager, hopeful, upward-looking approach to penal conditions was premised on the supposition that high crime rates were caused by apartheid. Van Zyl Smit “Swimming Against the Tide: Controlling the Prison Population in the New South Africa,” In Dixon and (eds) Justice Gained? Crime and Crime Control in South Africa’s Transition (UCT Press, Cape Town 2004) at p 231. Once apartheid was abolished the crime rate would gradually decline and the little crime remaining would be dealt with by a fair criminal justice system. Halcyon days. Reality proved to seem the opposite. During the first decade of democracy, crime increased – as did fear of crime. According to the South African Police Services (SAPS), during 1994-2004, crime in fact increased by an alarming 30%. De Kock, Kriegler and Shaw, “A Citizen’s Guide to Crime Statistics: 1994-2015,” Centre of Criminology (September 2015) at p 9. Our country experienced what was described as a post-apartheid “crime wave”. Schönteich and Louw “Crime Trends in South Africa 1985-1998” (June, 1999). Centre for the Study of Violence and Reconciliation. In fact, realistic comparative statistics to determine whether crime had actually increased are hard to come by. This is compounded by the fact that before democracy “South Africa” excluded almost 10 million people in the supposedly “independent” Bantustan homelands. Statistics for pre-1994 “South Africa” related to a very different population. There is some indication, however, that, as civil dissent against apartheid grew, crime from the mid-1980s steeply rose. I am indebted for this point to Clare Ballard of the Lawyers for Human Rights. Hence, perhaps another way to measure the “crime wave” is through the National Victims of Crime Surveys. This shows how public perception of the fear of crime increased during the first decade of democracy. Key results from the 1998 Survey demonstrate that only 26% of South Africans claimed SAPS had become more effective since the 1994 elections. Statistics South Africa Victims of Crime Survey (1998) at vi. The 2003 Survey concluded that the fear of crime amongst South Africans more than doubled – from 25% in 1998 to 58% in 2003. Burton, du Plessis, Legget and Louw. Monograph No 101: National Victims of Crime Survey South Africa 2003 (Institute of Security Studies, July 2004) at p 15. In other words, the majority of South Africans, black and white, rich and poor, urban and rural, felt unsafe in the newly democratic state. This inevitably generated public calls for criminals to receive longer and tougher sentences. Van Zyl Smit above n 13 at p 238. This triggered “tough on crime” policies, which were harsh and punitive – and they reflected a new, harsh and punitive approach. Redpath “Unsustainable and Unjust: Criminal Justice Policy and Remand Detention Since 1994” (2014) 1 SA Crime Quarterly at p 25. It is notable that at almost exactly the same time, the “New Labour” government in the United Kingdom was also introducing “tough on crime” policies, see Solomon, Eades, Garside and Rutherford “Ten Years of Criminal Justice under Labour: Independent Audit” (2007) Centre for Crime and Justice Studies at p 10. A statement by the Commissioner of Correctional Services, Mr Khulekani Sithole, in 1997 illustrates a relapse to a punitive approach: “[t]hey are animals. They must never see the sunlight again”. Van Zyl Smit above n 13 at p 232. The Minister of Safety and Security in 1999, Mr Steve Tshwete, claimed that “the criminals have obviously declared war against the South African public… we are ready more than ever before, not just to send the message to the criminals out there about our intention, but more importantly to make them feel that the tyd vir speletjies is nou verby”. Steve Tshwete, Minister of Safety and Security, Remarks at a Parliamentary Briefing, 28 June 1999. Quoted in Ballard and Subramanian “Lessons from the Past: Remand Detention and Pre-Trial Services” (2013) SA Crime Quarterly at pp 17-8. The Radical Shift During the late 1990s, harsh new policies were adopted. These included: the Criminal Law Amendment Act 105 of 1997, which introduced minimum sentencing provisions; the Criminal Procedure Amendment Acts of 1995 and 1997, which made getting bail a lot tougher; As Kriegler J explained on behalf of the Constitutional Court in Dlamini v S [1999] ZACC 8; 1999 (4) SA 623; 1999 (7) BCLR 771, major amendments to the Criminal Procedure Act 51 of 1997 were introduced in 1995 (Criminal Procedure Second Amendment Act 75 of 1995, which came into operation on 21 September 1995) and another in 1997 (Criminal Procedure Second Amendment Act 85 of 1997, which came into operation on 1 August 1998). The 1995 amendment substituted a brand new and radically different section for the principal provision relating to bail, namely section 60 of the Criminal Procedure Act. That section, which had not been amended since its enactment in 1977, “used to be”, Kriegler J said at para 12 “a simple and prosaic companion to sections 58 and 59”. The three sections formed the introduction to chapter 9 of the Criminal Procedure Act, and between them governed the effect of bail generally; police bail; and bail for an accused in custody at or after the first appearance in a lower court. Section 60 did no more than to state the principle that such an accused could apply for bail and to prescribe the requisite procedure. By contrast, the new provision contained no fewer than 11 subsections dealing in considerable detail with both substantive and procedural matters, and straitening the possibility of bail considerably. the Correctional Services Act 1998, which complicates release processes and stiffens bail and parole processes; Van Zyl Smith above n 13 at 238. Parole and Correctional Services Amendment Act 1997, which came into effect on 1 October 2004. See Altbeker (2007) 32-33f and Steinberg (2005) accurately notes that “the flexible release system used during the apartheid era was scrapped in 1993, to be replaced by a confusing and convoluted ‘credits’ system incapable of deployment in the management of prison volumes”. The 1993 system was, in turn, replaced in 2004 by the new provisions, “which render the release system even more rigid”. Section 73(6)(b)(iv) of the Correctional Services Act 111 of 1998, which came into force on 31 July 2004, provides that anyone sentenced to life incarceration “may not be placed on day parole or parole until he or she has served at least 25 years”. Section 73(6)(b)(v), which required that those serving minimum sentences of imprisonment serve at least four-fifths of their sentences, was repealed by section 12 of Act 5 of 2011. and the Prevention of Organised Crime Act, Act 121 of 1998. which in effect casted a wider criminal net and ordered the forfeiture of criminal gains. Sections 4 and 9 of the Prevention of Organised Crime Act 121of 1998. In addition, the United States model of super-maximum security prisons was imported into South Africa in the form of C-Max prisons. Dissel “Tracking Transformation in South African Prisons” Track Two 11 (2002) at p 11. The most puzzling and perhaps the most harmful of these were the minimum sentencing prescripts. As Lukas Muntingh notes, “[t]hese changes were purposefully directed at imposing harsher punishments by limiting access to bail, increasing sentence jurisdiction, lengthening prison terms, limiting courts’ discretion at sentencing and increasing non-parole periods. However, the impact of these measures, individually or combined, on the already overcrowded prisons was of little concern to the legislature and the executive”. Muntingh An Analytical Study of South African Prison Reform After 1994 (PhD Thesis, University of the Western Cape, 2012) at p 385. The findings of the sadly now-forgotten Jali Commission underscored all this. It found that “[t]he relatively new bail laws, which limit the circumstances under which an accused person can be released on bail, certainly contribute to the high number of accused persons languishing in the awaiting trial section of our Prisons. Furthermore, the renewed minimum sentence legislation also impacts negatively in that many prisoners who have been convicted in the regional courts on serious charges have to wait extraordinarily long periods for High Court dates before they are sentenced”. Department of Correctional Services Jali Commission of Inquiry into Alleged Incidents of Corruption, Maladministration, Violence or Intimidation in the Department of Correctional Services (2005) (Jali Commission) at p 444. The Minimum Sentencing Regime Minimum sentencing legislation in South Africa dates back to the 1970s. In 1971 the apartheid ideologue Dr Connie Mulder introduced minimum sentencing for dagga and other drug-related offences. Act 41 of 1971. Those sentences had an appalling impact. And they conspicuously failed to curb the use and distribution of dagga. Even the un-outspoken apartheid judiciary condemned them. S v Gibson 1974 (4) SA 478 (A) at 481H-482B. (They did so even against minimum sentences in “political” (that is, anti-apartheid) cases.) S v Mpetha 1985 (3) SA 702 (A) at 706H (Corbett JA) and 710D-E (van Heerden JA, who as counsel eleven years before had argued for the appellant in S v Gibson). At issue was the five-year minimum sentence under the Terrorism Act 83 of 1967. My first experience of the impact of minimum sentences was when I visited Vereeniging prison, in July 1976, as a vacation-break registrar to Judge Douglas Davidson, a judge of the then-Transvaal Provincial Division of the Supreme Court, who was on circuit court. We found a prison crammed full of woman and men, most of whose only sin was to possess or pass on small amounts of dagga – something the indigenous populations of this country had been doing for centuries. Minister Mulder’s vicious laws forced the courts to impose severe minimum sentences for even trivial cases of dagga possession and dealing. The human impact was unforgettable. Cameron above n 1 at para 38. Just a year before the enactment of the 1997 statute the new Minister of Justice, Dullah Omar – a peaceable and principled man – had appointed a committee of the South African Law Reform Commission (SALRC) to consider the sentencing policy. The Commission’s report set out six alternatives In S v Vilakazi 2012 (6) SA 353 (SCA) at para 10, Nugent JA pointed out that a sophisticated system to construct guidelines to secure consistency in sentencing was subsequently recommended by the South African Law Reform Commission (SALRC) in December 2000 – a recommendation made after a comprehensive review of sentencing practice in this country and abroad. But the sophisticated guideline-system the SALRC recommended, which “would have been welcome to many judges who face the difficult task of sentencing”, was never introduced. Instead, the “temporary regime” in the 1997 statute became permanent. to minimum sentencing. These included more sensible, just measures such as presumptive sentencing guidelines, voluntary sentencing guidelines, and legislative guidelines. Library of Congress “Sentencing Guidelines: South Africa” available at: http://www.loc.gov/law/help/sentencing-guidelines/southafrica.php. Presciently, it also cautioned that, although too early to gauge long-term effects, the new sentences would likely have a “profound” effect on the prison population. South African Law Commission (SALRC) Discussion Paper 91: Project 82 at p 16. But, surprisingly, in reaction to the crime panic, the country’s lawmakers had already shut the door. Parliament had selected the harshest option – without the benefit of mature law reform deliberative process. The Criminal Law Amendment Act 105 of 1997. strictly curtailed the power of judges to determine the length of prison terms for offences or offenders. Instead, it provided minimum sentences for certain serious offenses. These included a mandatory life sentence for – premeditated murder, murder of a law enforcement official, or a potential state witness murder connected to a rape or robbery with aggravated circumstances rape committed more than once by the accused or others, gang rape rape of a minor under 16. Terblanche “Mandatory and minimum sentences: Considering s 51 of the Criminal Law Amendment Act 1997” (2003) Acta Juridica at pp 195-218 gives a full exposition of the import and language of the amending statute. The law mandates a 15-year sentence for a first-time offender convicted of murder (under circumstances that would not otherwise merit a life sentence), robbery, certain drug-related offenses, weapons-related offenses, or “[a]ny offence relating to exchange control, extortion, fraud, forgery, uttering, theft”. A repeat offender must be sentenced to not fewer than 20 years, and a third- or further-time offender a sentence of not fewer than 25 years. In addition, the minimum sentences cannot be suspended. Section 51(5). Time spent awaiting trial cannot be counted as part of the sentence to be served. Section 51(4). Like temporary classrooms, the new minimum sentencing regime was intended to be a temporary solution to a temporary problem. SALRC above n 36 at p xix para 4 notes that “[w]hen the 1997 Criminal Law Amendment Act was passed no thought appears to have been given to what impact it would have on sentencing patterns, which in turn would have a knock-on effect on the prison system that would have to implement the new longer sentences. The reason for this may be that the legislation was designed to be temporary… the impact of a sudden and significant increase in the number of life sentences, for example, will be felt for many years to come”. The minimum sentencing regime was initially stated to apply for a limited period of two years only, which could be extended from time to time. Section 53 of the Criminal Law Amendment Act of 1997 states: “Sections 51 [minimum sentences for certain serious offences] and 52 shall, subject to subsections (2) and (3), cease to have effect after the expiry of two years from the commencement of this Act.” However, following the amendments made in 2007 Act 38 of 2007. it is now in force until expressly scrapped. Minister Omar told Parliament that the new sentences were “to tide us over our transition period”. Van Zyl Smith above n 13 at p 203. They were necessary to “restore confidence in the ability of the criminal justice system to protect the public against crime”. Hansard, Debates of the National Assembly 16 November 1997, cols. 608-8. Limited thought was given to the impact on sentencing patterns and carceral conditions in overcrowding. The impact of minimum sentences is evidenced in two ways – (a) the increased numbers of both awaiting trial detainees and sentenced offenders as well as (b) the increase in the lengths of detention and incarceration. The detention periods for awaiting trial detainees range from four days to four years and even longer see Judicial Inspectorate of Prisons Annual Report for the Period 2001-2002 at p 12 and the length of incarceration of sentenced offenders increased, as more sentenced offenders were incarcerated for longer than seven years see Judicial Inspectorate of Prisons Annual Report for the Period 2004-2005 at p 24. Minimum sentences are not unavoidable. Judges may depart from them only if “satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence”. Section 51(3)(a). In S v Malgas 2001 (2) SACR 469 (SCA). the Supreme Court of Appeal offered guidance on this. Malgas at para 25 and endorsed by the Constitutional Court in S v Dodo [2001] ZACC 16; 2001 (3) SA 382 (CC)’ 2001 (5) BCLR 423 (CC) at para 11 In Centre for Child Law v Minister for Justice and Constitutional Development, [2009] ZACC 18; 2009 (2) SACR 477 (CC); 2009 (6) SA 632 (CC). the Constitutional Court by a majority held that the Constitution prohibits minimum sentencing legislation from being applied to children aged 16 and 17 years old. In S v Dodo the Constitutional Court upheld the harsh sentencing regime and endorsed the approach in Malgas. The Court reasoned that it would have been unconstitutional had the Legislature attempted to compel any court to impose a sentence that is inconsistent with the Bill of Rights. In particular section 12(1)(e) of the Constitution requires that the extent of any punishment should be proportionate to the seriousness of the offence. The rights contained in that section are breached when the punishment is grossly disproportionate to the offence. Since the sentencing courts are allowed to depart from the prescribed minimum sentencing regime where “substantial and compelling circumstances” exist, disproportionality can be prevented. However, “substantial and compelling circumstances” is a doubtful safeguard against unjust sentencing. This is because the criterion is unclear and inconsistently applied. SALRC above n 36 at xviii. Without adequate guidance, the criterion may lead to arbitrary results. For instance, in S v Vilakazi [2008] ZASCA 87; [2008] 4 All SA 396 (SCA); 2009 (1) SACR 552 (SCA) per Nugent JA, citing the absence of “gradation” in the compulsory sentences, and quoting the incisive criticisms of Professor Terblanche. A submission by the Western Cape Consortium of Violence Against Women showed various factors that were claimed to be used, erroneously, to justify lesser sentences. These include: the previous sexual history of the complainant, an accused’s cultural beliefs about sexual assault, absence of excessive force in perpetrating the rape, lack or apparent lack of physical harm to the complainant, lack or apparent lack of psychological harm to the complainant, any relationship between the accused and the complainant before the offence (including a consensual sexual relationship) and a lack of education, sophistication or disadvantaged background on the part of the accused. See “Submission To The Minister of Justice and Constitutional Development in Response to the Evaluation of the Criminal Law Amendment Act 105 of 1997” prepared by The Western Cape Consortium of Violence Against Women: (Namely: The Women’s Legal Centre, Rape Crisis Cape Town Trust, The Gender Health and Justice Research Unit, University of Cape Town and the Community Law Centre and the University of the Western Cape) (4 March 2005) at p 7. Consistency in sentencing is supposedly one of the primary justifications for minimum sentences. Terblanche “Sentencing Guidelines for South Africa: Lessons from Elsewhere” South African Law Journal (2003) 120 at p 859. Yet, it is not being achieved and the grounds for departing are inconsistently applied. I do not suggest that criminals, especially those that are violent against women, do not deserve harsh punishments. The point is rather that, in determining the appropriate, proportionate and justified punishment, the minimum sentencing regime, even with its qualification of “substantial and compelling circumstances” is utterly misdirected. The Consequences of “Tough on Crime” Policies The post-apartheid “crime wave” and “tough on crime” policies led to increases in sentences imposed and carceral lengths. That in turn meant a significant increase in the prison population. This has produced severe overcrowding, which negatively affects prison conditions and undermines the capacity of the Department of Correctional Services to function properly. Currently, there are about 164 129 prisoners in South Africa – 46 260 are remand detainees and 117 869 are sentenced offenders. Department of Correctional Services Annual Report 2017/2018 at p 28. It is important to note that there are some discrepancies in the numbers between the Judicial Inspectorate of Correctional Services and the Department of Correctional Services. Furthermore, accurate numbers or consistent reporting patters from the Department of Correctional Services are difficult to ascertain. By contrast, in 1995 the total prison population was 112 572 (27 320 remand detainees and 85 252 sentenced offenders). Department of Correctional Services Annual Report 1995 at p 5. This means that over just less than a quarter-century after 1995, our prison population increased by two-fifths (39% or 1.4% per annum). Even though this is not as high as the peak prison population numbers in the early 2000s, the Judicial Inspectorate of Correctional Services Established under Chapters IX and X of the Correctional Services Act 111of 1998. has described the current numbers as “unacceptably high”. Above n 56. The increase is a direct result of “tough on crime” policies: The abolition of the death penalty by decision of the Constitutional Court in 1995 S v Makwanyane [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391 (CC). led to the imposition of life sentences on most of those previously sentenced to death. This obviously increased the number of sentenced offenders as well as the length of incarceration. South Africa History Online “The South African Constitutional Court Abolishes the Death Penalty,” (6 June, 1995) available at http://www.sahistory.org.za/dated-event/sa-constitutional-court-abolishes-death-penalty-0. But the vast increase in the number of prisoners serving life or other long-term sentences was due to the introduction of minimum sentences. The figures are striking. In 1998, 35% of sentenced offenders were serving more than 7 years. By 2005 this number was 63%. Judicial Inspectorate of Prisons Annual Report for the Period 2005-2006 at p 25. Today, more than 18 000 prisoners are serving life sentences, which is well beyond the current capacity of our correctional centres. Judicial Inspectorate for Correctional Services Annual Report for the Period 2017-2018 at p 24; Muntingh “Op-Ed: Rethinking Life Imprisonment” Daily Maverick (2 March 2017) available at https://www.dailymaverick.co.za/article/2017-03-02-op-ed-rethinking-life-imprisonment/. This is compared to a mere 400 prisoners in 1995 (4 400% increase, which is fast approaching a situation where one out of every five sentenced prisoners is serving life). Id. What is more, when minimum sentences were introduced, parole policies were also stiffened, which means that prisoners are spending longer periods of time in prison. Section 276B of the Criminal Procedure Act, introduced in 1997, Section 22 of Act 87 of 1997. empowers sentencing courts imposing a sentence of two years or longer to determine a “non-parole period”. This allows a court to fix, as part of the sentence, a period in which the accused may not be placed on parole. The non-parole period is only available for sentences of two years imprisonment or longer may qualify for this determination, the non-parole period is limited to two thirds of sentence and it is only in the context of exceptional circumstances see Terblanche “The Sentence” in Criminal Procedure Handbook 12 ed (Juta & Co Ltd, Cape Town 2017) at p 387. There were prescient warnings when this was enacted, that the full impact would be felt “in the years to come when those who would otherwise have been released remain in prison due to the stipulated minimum sentences with longer non-parole periods”. Giffard and Muntingh “The Effect of Sentencing on the Size of the Prison Population” (October 2006) Report Commissioned by the Open Society Foundation for South Africa. Even though parole can be exercised as a mechanism to reduce the number of sentenced offenders, the Department of Correctional Services does not appear to have the capacity to act efficiently to provide for effective parole. Id at p 29 and see further Sloth-Nielsen “Parole Pandemonium” (2005) CSPRI Newsletter No. 14. The effect has been marked: between 1987-1994, inmates sentenced to life imprisonment were required to serve 10 years before becoming eligible for parole; now only in exceptional circumstances could an inmate be granted parole before they had served 15 years. Under the previous Prisons Act of 1959 “lifers” The term widely used among inmates and also by correctional officials. were eligible to apply for parole after serving a minimum of 20 years. However, section 22A of the 1959 Prisons Act, introduced by an amendment in 1993, allowed for inmates to earn credits for good behaviour. These credits translated into days served, with the effect that the date for consideration for parole for those inmates was moved earlier. The effect of this was that inmates sentenced to life incarceration between 1 March 1994 and 1 October 2004 became eligible for parole after having served a minimum period of 13 years and four months of their life sentence. Under the Correctional Services Act of 1998, however, a “lifer” is eligible for parole only once they have served a minimum of 25 years. Section 136(1) is the transitional provision and provides that inmates sentenced before 1 October 2004 are subject to the Prisons Act and must serve a minimum of 20 years, but inmates sentenced after 1 October 2004 are governed by the Correctional Services Act and must serve a minimum of 25 years. This in effect created a dual system of assessment, consideration and placement on parole of sentenced inmates determined by their date of sentence. Earlier this year, the Constitutional Court in Phaahla v Minister of Justice and Correctional Services [2019] ZACC 18; 2019 (2) SACR 88 (CC); (2019) (7) BCLR 795 (CC). held that section 136(1) was constitutionally invalid. The use of date of sentence, rather than the date of commission of offence, offended against the right to equal protection of the law and the right to the benefit of the least severe punishment. The majority held that it amounts to retroactive application of the law, which violates section 35(3)(n) and the principle of legality. Phaahla is a positive development – but it also underscores the need for a proper reconsideration of the parole system as a whole. Medical parole Section 79 of the Correctional Services Act. The Jali Commission rightly objected that prisoners on their deathbeds from terminal diseases like AIDS were not granted medical parole. Jali Commission above n 29 at p 33. More recently, medical parole has become somewhat notorious since the case of Mr Schabir Shaik. Shaikh “Calls to investigate Schabir Shaik medical parole”, Sunday Tribune 11 February 2018, available at https://www.iol.co.za/sunday-tribune/news/calls-to-investigate-schabir-shaik-medical-parole-13222474. Although the provision is salutary, it is being more and more seldomly used. Accurate statistics on the patterns of medical parole are hard to come by, but what we have found is that the number of prisoners granted medical parole has decreased from 23% of those prisoners applying for it in 1996 to roughly 10% in more recent years. Judicial Inspectorate of Prisons. Annual Report for the Period 2004-2005 at p 32 and Muntingh “How Medical Parole Works in South Africa” (5 February 2015), available at http://www.702.co.za/articles/1594/how-medical-parole-works-in-south-africa. Although these numbers are from 2015, correspondence from Professor Muntingh suggests there is no reason to believe the numbers have increased. The low rates are despite the various amendments that have been made to section 79 of the Correctional Services Act, which is intended to regulate and ease the parole process. Amendments came into force 1 March 2012, the amendments were prompted by the need for prisoners to die a consolatory and dignified death and because the proportion of inmates who had been released on medical grounds over the years had been extremely low compared to the number of inmates who had died of natural causes in prison, see further Mujuzi ‘Releasing terminally ill prisoners on medical parole in South Africa’ (2009) 2 South African Journal of Bioethics and Law 60. Prior to amendments, the narrow scope of section 79 only allowed for sentenced prisoners diagnosed as being in the final stage of a terminally ill disease may be released to die a dignified death. Muntingh above n 28 at p 284. The scope has now been extended to include a prisoner suffering from a terminal disease or condition or if such prisoner is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or prisoner self-care. In addition, unlike its predecessor, an initiation process is outlined by section 79(2). However, these amendments have introduced new hurdles. First, the risk of reoffending upon release means the health of the prisoner is contingent upon their potential to reoffend. Id. A seemingly positive but potentially discriminatory provision is to show that there will be appropriate arrangements for supervision, care and treatment for medical parole in the community. Albertus The Right to Health Care of Terminally Ill Inmates in South Africa (PhD Thesis, University of the Western Cape, 2018) at pp 208-9. Whether the new medical parole system is effective in ensuring prisoners die a consolatory and dignified death, is not self-evident. Id at p 197. In addition, there is the problem of alleged monthly arrest targets set by the SAPS. This leads to unnecessary arrests. The effect is that many arrested persons remanded in custody are ultimately never tried; instead their cases are withdrawn or struck off the roll. Karth, O’Donovan and Redpath “Between a Rock and a Hard Place: Bail Decisions in Three South African Courts” (2008) Report prepared by the Open Society Foundation found that one out of every two cases were withdrawn or struck off the roll (at p 32). If it is correct, as analysts claim, that police have “arrest targets”, Muntingh above n 28 at p 355 and see McNally “The Absurd Targets We Force on the Police to Fight Crime” Daily Maverick (30 September 2016) available at https://www.dailymaverick.co.za/article/2016-09-30-op-ed-the-absurd-targets-we-force-on-the-police-to-fight-crime/. this would create a significant contribution to the remand detainee population. In sum, after formal apartheid, the alleged “crime wave” led to our dumping a restorative justice approach and embracing a punitive one. The “tough on crime” approach led to an increase in the prison population – but without a matching increase in infrastructural and institutional capacity and with utterly no benefit regarding crime. The result has been overcrowding. We are essentially shoveling prisoners into a funnel and they are not being rehabilitated. Our post-apartheid prisons have a systemic problem that is in dire need of a systemic solution. The Human Impact In some cases, “tough on crime” has meant gross overcrowding. Judicial Inspectorate for Correctional Services Annual report for the Period 2013-2014 at p 32. In the 2017/2018 year, overcrowding was at 138% (164 129 average prison population against 118 723 bed spaces). Judicial Inspectorate for Correctional Services Annual report for the Period 2017-2018 at p 24. Overcrowding has a double impact. First, it negatively affects the well being of prisoners. Second, it impedes good governance and administration of a prison. Jules-Marquet, “The State of South African Prisons” (2014) NICRO Public Education Series 1, available at http://www.nicro.org.za/wp-content/uploads/2014/04/Public-Education-Paper-The-State-of-South-African-Prisons-2014.pdf. High-risk behaviours (violence, sexual violence) become rampant, the risk of transmitting diseases (such as HIV/AIDS and tuberculosis (TB)) is higher than outside prison, mental health problems persist or arise, but without treatment. And, perhaps most frighteningly, gangs and drugs flourish in overcrowded prisons. In 2015, I visited Pollsmoor Correctional Centre (Remand Centre and Women’s Centre). My later report indicated that “the extent of overcrowding, unsanitary conditions, sickness, emaciated physical appearance of the detainees, and overall deplorable living conditions was profoundly disturbing”. Justice Cameron “Report: Pollsmoor Correctional Centre – Remand Centre and Women’s Centre” (23 April, 2015) available at http://www.constitutionalcourt.org.za/site/PrisonVisits/Cameron/Pollsmoor-Prison-Report-23-April-2015-Justice-Edwin-Cameron-FINAL-for-web.pdf. My Report exposed that overcrowding was evident everywhere, but especially in the Remand Detention Facility where occupation was at a startling 300%, with an average of 65 prisoners per cell (sharing one toilet and one shower). Id at pp 13-4. In response to the Report, Sonke Gender Justice and Lawyers for Human Rights brought proceedings in the Western Cape High Court, seeking a structural interdict to address these conditions. As a result, the Department of Correctional Services transferred a significant number of prisoners from Pollsmoor to other centres. But, grievously, this seems merely to have transferred the problem elsewhere. The current Judicial Inspector of Correctional Services, retired Justice Johann van der Westhuizen, noted that “although [the court order] alleviated the overcrowding crisis at Pollsmoor, it caused other unintended challenges, for example, exacerbating overcrowding elsewhere, especially at smaller centres”. Judicial Inspectorate of Prisons Annual Report for the Period 2017-2018 at p 27. He cautions that overcrowding in the Western Cape is still at 90% or more. Id. It is now necessary to consider the day-to-day perils prisoners experience. Sexual violence seems to be pervasive in South African prisons. Sex can be a “tradable commodity”, Jali Commission above n 29 at p 29. but, even then, its transaction worth may derive from implicitly coerced and thus violent structures within prison. Violence within prisons correlates with socially constructed gender roles coupled with power and deprivation. See Gear and Ngubeni, “Daai Ding: Sex, Sexual Violence and Coercion in Men’s Prisons,” (2002) Centre for the Study of Violence and Reconciliation at p 12 stated that for the prison gangs, specifically the 28s, sodomy has been a central weapon to demonstrate power, and in this sense thus a central part of the 28s creed - especially in recruitment, prison “marriages”, and punishment. The shocking reality for prisoners who are victims of sexual violence is the lack of recourse and, worse, lack of safeguards or deterrence from falling victim again. The Jali Commission uncovered how when prisoners are victims of sexual violence instead of being protected by prison officers, the very personnel entrusted to protect them, may instead sodomise them. The Jali Commission highlighted stories of prison officers taking vulnerable prisoners, typically juveniles and remand detainees, as sex slaves and selling them to the highest bidder. See further: Minnie, Prins and van Niekerk, “The Role of Prison Gangs as Precipitating Agent in the Spread of HIV/AIDS in South African Prisons with Special Emphasis on Socio-Cultural Factors” (2002) Acta Criminologica at p 56. In conventional roles, men may be viewed as the “perpetrators of sex”; women the “submissive receivers”; with sexual violence performed as an act validating manhood, dominance, and superiority. Gear “Sex, Sexual Violence and Coercion in Men’s Prisons” paper presented at the AIDS in Context International Conference, Johannesburg, South Africa (14 April 2001) available at. http://www.csvr.org.za/docs/correctional/sexsexualviolence.pdf. In these enactments, sexual violence is performed by men regardless whether they self-identify as heterosexual, as men who have sex with men (MSM) or homosexual. Id. Though studies consistently indicate that up to 40% of adult males confined institutionally may engage in some form of (consensual) same-sex conduct, reliable statistics are elusive. It seems likely that rape in prisons is grossly underreported. Minnie, Prins and van Niekerk above n 91 at p 53. Violence in general is rampant in South African prisons, perpetrated by prisoners (whether within or outside gang structures). See Steinberg, “Nongoloza’s Children: Western Cape Prison Gangs During and After Apartheid (2004) Centre for the Study of Violence and Reconciliation; Lötter “Prison Gangs in South Africa: A Description” 19 (1988) South African Journal of Sociology. Prison gangs function by exerting power through violence. In terms of the 28s, violence is also part of the initiation strategy. Another common recruitment tactic to become a member of the 28s is to stab a prison officer. Moreover, competition for wyfies, and other disputes amongst members and mpatas (non-members) leads to violence. While the 28s focus is sodomy, other gangs’ core mandate is violence, for instance the 27s focus on committing “blood assaults.” As more prisoners speak out about being victims of harsh violent acts, an incident in St Albans Prison should not be viewed in isolation but rather exposes the pervasiveness of violence within prisons. Wits Justice Project “St Albans Prison Torture: A Conspiracy of Silence” (3 March 2015) available at http://witsjusticeproject.com/2015/03/04/st-albans-prison-torture-a-conspiracy-of-silence. Recently, violence and maladministration was exposed by videos that emerged from Westville Prison of prisoners taking drugs as well as correctional officials handing out weapons to prisoners and instigating them to fight each other. Singh “Westville inmates have a ‘cocaine party’ in prison” Times Live (25 June 2019) available at https://www.timeslive.co.za/news/south-africa/2019-06-25-watch-westville-inmates-have-a-cocaine-party-in-prison/ Prisons are known as sites for the spread of communicable and infectious diseases. Prisoners may be exposed to sexually transmitted diseases, TB and HIV. Prisoners are identified as a vulnerable group in the HIV/AIDS epidemic. According to Avert, on average people in prison are 5 times more likely to contract HIV/AIDS see Avert “HIV and AIDS in South Africa” https://www.avert.org/professionals/hiv-social-issues/key-affected-populations/prisoners the reasons for this are multifaceted and Avert states that, “[p]risons are a high-risk environment for HIV transmission with drug use and needle sharing, tattooing with homemade and unsterile equipment, high-risk sex and rape commonplace. Overcrowding as well as stress, malnutrition, drugs and violence weaken the immune system, making people living with HIV more susceptible to getting ill”. Since South Africa has one of the largest populations in the world living with HIV (7.1 million people, 20.4%) Avert “HIV and AIDS in South Africa” (28 August 2019) available at https://www.avert.org/professionals/hiv-around-world/sub-saharan-africa/south-africa. the epidemic directly affects correctional facilities. Some reports indicate that nearly a quarter of the prison population (23%) is living with HIV. See Nevin and Keehn “Pollsmoor: Reducing Overcrowding in a South African Remand Detention Facility” (August 2018) EHPSA Case Study Series: Included! How Change Happened for Key Populations and HIV Prevention at p 3. Up to date official estimates of HIV prevalence are not accessible. Id. Although in 2006 the Department of Correctional Services commenced through Lim’uvune Consulting conducted a HIV prevalence survey, ‘Unlinked, anonymous HIV and Syphilis Surveillance Survey’ which resulted in 19.8% prevalence rate (compared to the national prevalence rate at the time which was 10-11% but accounting for the demographic profile and age equivalence of the average male prisoner, the 19.8% needs to be in juxtaposition to 16.25%). While the Department of Correctional Services can be commended for conducting the study, shortcomings were evident (low participation rates, and it focused on sentenced offenders and not remand detainees) which undermines the results of the survey. Estimating the prevalence rates in prisons is further compounded by the complex reality that individuals prone to criminality exhibit risk factors that are associated with individuals likely to contract HIV/AIDS as Goyer and Gow stated in “Capital Punishment? The Risk of HIV/AIDS in Prison” (2000) Crime & Conflict at p 16 “the typical characteristics of a prisoner coincide almost eerily with that of seropositive individual”. Therefore, a proper prevalence study of HIV/AIDS in prisons would require a statistical interrogation of the question of correlation versus causality. The high risk of HIV transmission within prisons was long ago acknowledged by the Jali Commission, which noted that “sexual abuse is rife in our prisons, and that there is an extreme likelihood that prisoners who are exposed to violent, unprotected sex will in all likelihood develop to AIDS, then it is effectively, by omission, imposing a death sentence on vulnerable prisoners.” Jali Commission above n 29 at p 446-7. Greater complexity even has been caused by the joint epidemics of HIV-TB. A study conducted in Pollsmoor Remand Detention Facility concluded that TB transmission risks in overcrowded communal cells stood at a disquieting 90%. Robertson, Lawn, Welte, Bekker and Wood “Tuberculosis in a South African Prison – A Transmission Modeling Analysis” 101 (2011) South African Medical Journal at p 810-1. Also see Lee v Minister of Safety and Security [2012] ZACC 30; 2013 (2) BCLR 129 (CC); 2013 (2) SA 144 (CC). The study finds the conditions created by overcrowding make prisoners more susceptible to opportunistic airborne diseases such as TB. Id. Mental health is also a serious problem in the prison setting. This manifests in three ways. First, prisoners with mental issues entering the system are not detected and remain incarcerated in communal cells. Second, conditions in the prison setting are traumatic and trigger mental issues. Third, mental health problems are prevalent especially among prisoners re-entering society who face the stigma and marginalisation within their communities as well as the additional stresses of finding new employment, meeting with parole officers and reintegrating with family members and loved ones. Muntingh “Prisoner Re-Entry in Cape Town - An Exploratory Study” (2008) CSPRI Research Paper No. 14 available at https://acjr.org.za/resource-centre/Prisoner%20Re-Entry%20in%20Cape%20Town%20-%20An%20Exploratory%20Study.pdf. The 164 129 individuals currently incarcerated are not necessarily constantly behind bars and out of the public domain. The South African prison population is particularly fluid with one of the highest incarceration rates in the world coupled with one of the highest recidivism rates in the world (estimates range from 60-90%). Without an official estimate there seems to be a discrepancy in the exact recidivism rates but all these rates are particularly high on global standards: Jules-Marquet “The State of South African Prisons,” (2014) NICRO Public Education Series at p 19 mentions a recidivism rate between 80%-90%; Murhula and Singh “A Critical Analysis on Offenders Rehabilitation Approach in South Africa: A Review of the Literature” (2019) 12 African Journal of Criminology and Justice Studies cites Schoeman at pp 22 and 34 and “A Classification System and an Inter-Disciplinary Action Plan for the Prevention and Management of Recidivism” (PhD Thesis, University of Pretoria) (2013), which states recidivism rates in South Africa are estimated between 55% and 95%. There are many reasons for the extremely high recidivism rates including poor rehabilitation approach, resource constraints and overcrowding, deficiency of staffs and the lack of appropriate support for reintegration of offenders upon release from correctional centres. Ngabonziza and Singh “Offender Reintegration Programme and its Role in Reducing Recidivism: Exploring Perceptions of the Effectiveness of Tough Enough Programmes” (2012) Acta Criminologica (Special Edition) at p 89 mentions recidivism rates ranging from 94% and Draft White Paper on Corrections in South Africa (2003) and other studies conducted which found 60%-70%. These indicators show that there is a constant interchange between people inside and outside of prisons. Our prison walls are permeable. The perils prisoners experience do not necessarily stay behind prison walls, but are blended into the outside. In some ways prisons may be a microcosm of our society. If we want to tackle drug addiction, gang violence, violence against women, TB-HIV, and other social ills, we need to address them in the prison population. It can be stated, as a sober fact, that the conditions in South African prisons fall short of the Nelson Mandela Rules – also known as the Standard Minimum Rules for the Treatment of Prisoners adopted by the UN General Assembly in 1955. Former Inspecting Judge Hannes Fagan Inspecting Judge from 1 April 2000 - 31 March 2006. warned that the harsh conditions created in the prisons because of overcrowding are “not curbing crime” – on the contrary, they are “creating it.” Judicial Inspectorate of Prisons. Annual Report for the Period 2003-2004 at p 21. Minimum sentences are pointless, counter-productive and misleading Minimum sentences in fact have a pernicious effect – on our correctional system, on offenders, and, most of all, on us – our society, the people. The reason is that minimum sentences offer us a false promise – the belief that we are actually doing something about crime. But in fact we are not. And this false promise lets those who are responsible for effectively dealing with crime – our society’s leaders, and the criminal justice system for whose functioning they are responsible – off the hook. To make my point during the UWC lecture, I considered four possible justifications for minimum sentences: (i) prison deters crime, (ii) imprisonment incapacitates criminals and prevents more crime while they are in prison, (iii) prison can rehabilitate criminals, and (iv) finally, prison is retributive and so vindicates justice for victims and society. Cameron above n 1 at paras 64-7. None of these justifications supports minimum sentencing as applied in South Africa today. The blunt fact is that minimum sentences simply do not work. What is more, they have seriously and dangerously clogged up our prison system. Why no response? After the UWC lecture, I confidently anticipated public outrage. After all, a judge had decried minimum sentences. Surely pro-imprisonment activists, rightly concerned about women and other victims of crime, would speak out to rebut my arguments against harsh sentencing? But no. Not a peep. Cameron above n 1 has been cited in Keehn and Nevin “Health, human rights, and the transformation of punishment: South African litigation to address HIV and tuberculosis in prisons” (2018) Health and Human Rights. In the United States – from where minimum sentences originate, and which provided specifically the model for our statutory format See Cameron above n 1 at para 168. – an engrossing, bipartisan debate has been taking place about incarceration, about its racial impact – since African Americans are hugely more likely to be incarcerated than other Americans – and about its social utility and costs. Hinton, Henderson and Reed “An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System” Vera Institute of Justice (May 2018) available at https://www.theguardian.com/us-news/2016/jun/18/mass-incarceration-black-americans-higher-rates-disparities-report. Also see Judge Mark W Bennett “How Mandatory Minimum Forces Me to Send More Than 1 000 Nonviolent Drug Offenders to Federal Prison” The Nation (24 October 2012) available at https://www.thenation.com/article/how-mandatory-minimums-forced-me-send-more-1000-nonviolent-drug-offenders-federal-pri/ “[m]any people across the political spectrum have spoken out against the insanity of mandatory minimums. These include our past three presidents, as well as Supreme Court Justice William Rehnquist, whom nobody could dismiss as “soft on crime,” and Anthony Kennedy, who told the American Bar Association in 2003 “I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences”. In December 2018 the President signed the First Step Act into law. The First Step Act is aimed at reforming tough-on-crime policies and reducing the overburdened federal prison population. The First Step Act aims to reform the federal prison system. The various reforms include widening federal judges’ discretion to bypass mandatory minimum sentences, reduce drug sentences, reduce the ‘three strikes penalty’, limit the stacking mechanism, develop new incentives to maintain good behavior in prison, and some of these developments may have retrospective effect, see further #First Step Act at https://www.firststepact.org/. Interestingly, despite Trump’s controversial leadership, the Bill received support from across the political spectrum. See Silbiger “Senate Passes Bipartisan Criminal Justice Bill” The New York Times (18 December 2018) available at https://www.nytimes.com/2018/12/18/us/politics/senate-criminal-justice-bill.html and Lartey “Trump Signs Bipartisan Criminal Justice Overhaul First Step Act into Law” The Guardian (21 December 2018) available at https://www.theguardian.com/us-news/2018/dec/21/trump-prison-reform-first-step-act-signed-law. In order to pass the Bill, compromise and concessions from both sides were required, For instance, the 2015 Sentencing Reform and Corrections Act of 2015 allowed for sentencing reductions to have a retroactive effect but in order for the current Bill to pass, it needed to be more limited and could not have a broad sweeping retroactive impact. In order to get Trump’s endorsement, it required some scaling back but it set the foundation for reform, which is an important step in the right direction. and this was done. Because there is an acknowledgment that the current “tough on crime” approach does not work for anyone – not the prisoners, not the liberals and not the conservatives. The impact of this Act has had a trickledown effect. Glueck “Biden, Scrutinized for Crime Bill, Unveils Plan to Reduce Mass Incarceration” The New York Times (23 June 2019) available at https://www.nytimes.com/2019/07/23/us/politics/biden-criminaljustice.html?nl=todaysheadlines&emc=edit_th_190724?campaign_id=2&instance_id=11093&segment_id=15491&user_id=b9cbf3ff9d4b3a88f26b55524d3b7477&regi_id=156856040724 Former Vice-President Joseph Biden, an architect of the 1994 Crime Bill and “tough on crime” approach, currently advocates for criminal justice reform. He has proposed a plan to reduce mass incarceration, and to address in particular the underlying factors that cause racial, gender and income-based disparities in the system. Some states have adopted new laws that reduce cannabis possession from a felony to a misdemeanor, with no prison time. In 2018, for the first time in nine years the United States prison population actually decreased. This was only by 1.3% Lewis “The U.S. Prison Population is Shrinking” The Marshall Project (24 April 2019) available at https://www.themarshallproject.org/2019/04/24/the-us-prison-population-is-shrinking. – but a pernicious trend had been reversed. In my vanity, or naiveté, I had hoped to help trigger a similar debate here. It has not happened. Why? The inefficiency of our criminal justice system, and disturbing overcrowding and lack of rehabilitation in our prisons can truly be termed a crisis. Why no response? Apart from courageous non-governmental organisations, including Sonke Gender Justice, Lawyers for Human Rights, Just Detention International, Wits Justice Project and others combined in the Detention Justice Forum, See further http://detentionjusticeforum.org.za/. who continue the fight for rationality in penal and criminal policy, there has been silence. There are four possible explanations. South Africans are deeply worried about crime, and justifiably so: Note, during the period 1994-2011 violent crime dipped and then started rising again. See United Nations Office on Drugs and Crime “Global Study on Homocide: Homocide Trends, Patterns and Criminal Justice Responses” (July 2019) available at https://www.unodc.org/documents/data-and-analysis/gsh/Booklet2.pdf at p 25. in October 2018, Statistics South Africa released a study indicating that so long as crime levels increase, fear rises and trust in the criminal justice system declines. See Stats SA “While Crime Increases, Fear Rises and Trust in Criminal Justice System Drops” (11 October 2018) available at http://www.statssa.gov.za/?p=11627 “The general level of crime as estimated by Victims of Crime Survey (VOCS) has been declining during the past five years but increased in 2016/17 and 2017/18. Household crimes increased by 5% to a total of 1,5 million incidences of crime while individual crime also increased by 5% to a total of 1,6 incidences, affecting 1,4 million individuals aged 16 and above. Northern Cape had the highest increase in both household and individual crimes. Housebreaking or burglary was the most dominant (54%) crime category among crimes measured by the VOCS. An estimated total of 830 thousand incidences of housebreaking occurred in 2017/18, affecting 4.25% of all South African households. Nearly 32% of items stolen during housebreaking were clothes, followed by cellphones (24%) and food (22%). An estimated 156 thousand home robberies occurred last year, affecting 0,8% of all South African households. This was an increase of 3% compared to the previous year. Theft of livestock, poultry and other animals which occurred in 2017/18, is estimated at 159 thousand incidences, affecting 0,77% of households in South Africa. The number of incidences increased by 1% compared to the previous year”. Just fifteen kilometers from where we meet tonight, the South African National Defence Force has had to be deployed in the Cape Flats to “quell escalating gang violence”. Hendricks “Cape Flats Residents Cheer Arrival of Army” Ground Up (19 July 2019) available at https://www.groundup.org.za/article/army-makes-it-way-cape-flats/. With crime rampant, locking up criminals and throwing away the key – even the thought of reintroducing the death penalty Bhengu “Thousands Sign Petition Calling for Penalty on Crimes against Women” TimesLive (3 September 2019) available at https://www.timeslive.co.za/news/south-africa/2019-09-03-thousands-sign-petition-calling-for-death-penalty-on-crimes-against-women/; Gerber “Death Penalty Referendum: ATM wants Parliament, Ramaphosa to give SA a say” News24 (4 September 2019) available at https://www.news24.com/SouthAfrica/News/death-penalty-referendum-atm-wants-parliament-ramaphosa-to-give-sa-a-say-20190904. – are favourably considered, because of a sense of bewilderment and bafflement and fear about crime. Hauntingly, public executions resulting from mob justice or vigilantism feature as one of the highest categories of motives for murder. A disturbing 789 murders are listed for 2018/2019. This is more than two public vigilante executions every day. Politicsweb “Lynchings in the RSA” (12 September 2019) available at https://www.politicsweb.co.za/opinion/lynchings-in-south-africa?utm_source=Politicsweb+Daily+Headlines&utm_campaign=283a680bd3-EMAIL_CAMPAIGN_2019_09_12_11_38&utm_medium=email&utm_term=0_a86f25db99-283a680bd3-130030197. In response to gender based violence, President Cyril Ramaphosa has advocated harsher sentences. Somdyala “Ramaphosa Promises Harsher Sentences and a Review into Inadequately Investigated Gender-Based Violence Cases” News24 (5 September 2019) available at https://www.news24.com/SouthAfrica/News/ramaphosa-promises-harsher-sentences-and-a-review-into-inadequately-investigated-gender-based-violence-cases-20190905. Also see Lindwa “In Quotes: Cyril Ramaphosa’s Promise To The Women of South Africa” The South African (5 September 2019) available at https://www.thesouthafrican.com/news/in-quotes-cyril-ramaphosa-promises-to-women-of-south-africa/ “Ramaphosa heard the demands of protesters’ for tougher laws, against men who abuse women, and he assured civilians that the criminal justice system will be harsher in dealing with perpetrators… The President further stated that all crimes against women should instantly attract harsher sentences, and a life sentence for these crimes will be proposed”. Our dismay, fear and anger at the horrors criminals inflict on us paralyse us – and do so counter-productively and dangerously. They prevent us seeking better and more effective solutions. The slowdown of our economy: another preoccupation and distraction. We are all worried. We are all preoccupied. Our economic woes, combined with the paralysis from crime divert us from proper criminological and penological solutions. The current economic situation has led to joblessness; our unemployment rate for the first quarter of 2019 was 27.6% (with a particular increase in youth unemployment at a startling 55.2%). Stats SA “Youth unemployment rate increases in Q1: 2019” (15 May 2019) available at http://www.statssa.gov.za/?p=12121 As a result, many turn to crime. Becker “Crime and Punishment: An Economic Approach” (1968) Journal of Political Economy at pp 169-217. Economists have claimed that unemployment (or a decline in the conditions of the labour market) can lead to an increase in crime. This is owing to the limiting and declining of opportunities in the legitimate employment sectors, which in turns makes turning to crime more attractive. With resources scarce and times austere, it is difficult to argue for more resources for prisoners or more resources for effective crime prevention. Budgetary needs compete with needs in health and education and housing. Crime is politicised in South Africa: with the scars of our apartheid past, our prison population was and still does comprise mainly black males. Africa Check “Factsheet: the state of South Africa’s prisons” (18 July 2017) available at https://africacheck.org/factsheets/factsheet-the-state-of-south-africas-prisons/ The issue today is not just race but also class. The majority of South African prisoners, sentenced and remand detainees, are from poor disadvantaged backgrounds. Muntingh above n 28 at p 356. Moreover, the burden of serious crime is disproportionately borne by poor black South Africans. Silber and Geffen “Race, Class and Violent Crime in South Africa: Dispelling the ‘Huntley thesis’” (2009) SA Crime Quarterly at p 41. Poverty often means a matching voicelessness. The families of rapists and murderers sentenced to life imprisonment would form an improbable lobby group for penological reform. Let me be blunt. Our new democratic elite – and that includes me as a retired Judge, Professor Chirwa, the Dean here, and almost everyone here tonight cares too little because of, in the case of white people, reasons of race and class, and, in the case of black people, reasons of class. Our lack of caring means that we fail to see the urgent need for constructive thought and action to implement solutions. Nine years of criminal syndicalism and looting of state assets have sapped moral energy and institutional capacity: in my UWC lecture two years ago, I explained how the crime surge in democratic South Africa was directly linked to the collapse of institutional capacity in the police – particularly, the crime detection and follow up services – and the collapse of competence in the National Prosecuting Authority (NPA). Cameron above n 1 at paras 51-5. This breakdown became sharply aggravated during the ‘Zuma years’. Former President Zuma seemed determined to appoint as head of the NPA a loyalist who could be relied upon to protect his own interests. This lead to a chaotic and catastrophic series of leadership bungles attributable to malign incompetence of various kinds. Democratic Alliance v President of South Africa [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012), nullifying the appointment of Mr Menzi Simelane as National Director of Public Prosecutions; Corruption Watch NPC v President of the Republic of South Africa; Nxasana v Corruption Watch NPC [2018] ZACC 23; 2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442 (CC) (13 August 2018), nullifying the appointment of Mr Shaun Abrahams. This ended only in December 2018 when Advocate Shamila Batohi was appointed National Director of Public Prosecutions, commencing her duties in February 2019. Appointed on 4 December 2018 see Phakgadi “Batohi’s Appointment as NDPP Welcomed Across the Board” News24 (4 December 2018) available at https://www.news24.com/SouthAfrica/News/batohis-appointment-as-ndpp-welcomed-across-the-board-20181204 and “Adv Shamila Batohi: National Director of Public Prosecutions’ National Prosecuting Authority of South Africa available at https://www.npa.gov.za/content/adv-shamila-batohi. The same malign incompetence was tragically and damagingly reenacted in the appointment of Mr Richard Mdluli – now a convicted criminal – as head of crime intelligence and in the various appointments of corrupt or incompetent or corrupt and incompetent commissioners of the SAPS. Smit “Mdluli Found Guilty – but only for Kidnapping, Assault” Mail and Guardian (2 August 2019) available at https://mg.co.za/article/2019-08-02-00-mdluli-found-guilty-but-only-for-kidnapping-assault The result has been a catastrophic loss of focus and capacity. Over the period preceding the Ramaphosa Presidency, our government has been (and unavoidably still is) plagued by criminally syndicated corruption and institutional disintegration. This result is three-fold. First, public trust in the police and the administration of justice sank as botched and sometimes malevolently designed appointments undermined basic functioning. Kirsten and Bruce “The Portfolio Committee on Safety and Security and The Portfolio Committee on Justice and Constitutional Development Re: South African Police Service Amendment Bill, 30 of 2008 and the National Prosecuting Authority Amendment Bill, 23 of 2008” Centre for the Study of Violence and Reconciliation at paras 30-1 (22 July 2008) available at https://www.csvr.org.za/docs/submission0708.pdf. There is wide public belief that we can no longer trust the guardians of public safety and security to keep us free from harm. Second, we have been distracted – distracted from the duties of efficient, publicly-directed governance and institutional building. Distracted from important moral debates about crime and punishment. Third, crime has become rampant as shown in the statistics released today – 3.4% increase in murders in 2018/2019 – meaning that in the last six years murder has escalated by 35%, with an increase in child murders (by 2.9%); Also see Farber “SA Teens Kill and Die at Double the Global Average. Why?” Times Live (23 September 2019) available at https://select.timeslive.co.za/news/2019-09-23-sa-teens-kill-and-die-at-double-the-global-average-why/. and the current murder rate is the highest level in the last decade. South African Police Services “2018/2019” Crime Stats Presentation” (April to March 2018/2019) available at https://www.saps.gov.za/services/april-march_2018_19_long_version_presentation.pdf; Van Diemen “Crime Stats: Murder of Women Down by 5.4%, but Child Murders Increase in 2018/19” News 24 (12 September 2019) available at https://www.news24.com/SouthAfrica/News/crime-stats-murder-of-women-down-by-54-but-child-murders-increase-in-201819-20190912; News 24 “Crime Stats: We’re Not Where We Want To Be, says CELE” (12 September 2019) available at https://www.news24.com/SouthAfrica/News/live-sa-crime-stats-revealed-20190912. Sexual offenses increased by 4.6% and sexual offences against children increased by 3.8%. Id. This can be attributed in substantial measure to corrupt and incompetent policing and corrupt and incompetent police intelligence. Major crimes such as car hijackings, gang attacks on hotels and malls, scrap metal and xenophobic violence can be curtailed significantly through adept deployment of crime intelligence. The Khayelitsha Commission chaired by the retired Justice Kate O’Regan set out to investigate the systemic failures of policing in Khayelitsha. The Khayelitsha Commission of Inquiry into Allegations of Police Inefficiency in Khayelitsha and a Breakdown in Relations between the Community and Police in Khayelitsha (August 2014). The Commission found, in August 2014, “widespread inefficiencies, apathy, incompetence and systemic failures of policing”. Id at p xxii. Significant findings were that detective services, training of police personnel and crime intelligence were in a dire state and that there was a breakdown of trust between the community and the police. Practical recommendations were made, most of them going to the heart of institution-building, training and building trust. However, the Social Justice Coalition has noted that the necessary political will to implement the Commission’s recommendations appears to be entirely lacking. Summer “[Press Statement] The Khayelitsha Commission of Inquiry – Five Years On” (26 August 2019) Social Justice Coalition available at http://sjc.org.za/posts/press-statement-the-khayelitsha-commission-of-inquiry-five-years-on. Alarmingly, this is in a city where the murder rate is 69 per 100 000 people, the Western Cape’s murder rate is 58.1 per 100 000 against a national murder rate of 35.8 per 100 000 and this can be compared to 3 per 100 000 in New York City. See News 24 “Cape Town has Highest Murder, Robbery Rates in New Safety Report – Where Does your City Rank?” (13 April 2019) available at https://www.news24.com/SouthAfrica/News/cape-town-has-highest-murder-robbery-rates-in-new-safety-report-where-does-your-city-rank-20190413; Business Tech “South Africa’s Most Violent Provinces in 2019” (14 September 2019) available at https://businesstech.co.za/news/lifestyle/340755/south-africas-most-violent-provinces-in-2019/ and The Economist “Why Cape Town’s Murder Rate is Rising” (4 October 2018) available at https://www.economist.com/middle-east-and-africa/2018/10/04/why-cape-towns-murder-rate-is-rising and Kanno-Youngs “New York City’s Murder Rate Hit New Low in 2018” Wall Street Journal (24 September 2019) available at https://www.wsj.com/articles/new-york-citys-murder-rate-hit-new-low-in-2018-11546559793 For instance, the site where the new Makhaza police station was recommended to be built still stands empty and derelict after five years. Gontsana “Still No Police Station Five Years After Khayelitsha Commission of Inquiry into Policing” GroundUp (26 August 2019) available at https://www.groundup.org.za/article/still-no-police-station-five-years-after-khayelitsha-commission-inquiry-policing/. The Moeka-Vuma police station was built in 2014 for Moeka Village in the North West Province yet has never been used, while the community continues to be plagued by crime. Mabena “Completed in 2014, This Police Station Has Never Been Used” GroundUp (20 September 2019) available at https://www.groundup.org.za/article/completed-2014-moeka-vuma-police-station-has-never-been-used/. This shows how much we need institutional building – actual construction, allocation of resources and personnel as well as application, competence, training and trust. Possible Solutions There are solutions. They are not easy. None of them offers a quick fix. The major response to the crime wave in our country should be to recognise that the sole inhibiting institutional response to criminal conduct is the certainty of detection, the certainty follow up, the certainty of arraignment, the certainty of prosecution – and the certainty of punishment. In this certainty, the length of sentence plays no role. In other words, whether a potential rapist faces a sentence of 2,5,10 years or life, it is not the length of sentence but the certainty of sentencing that will make them stop. This means that we must look away from minimum sentences. The blunt point is this. We do no good at all by finding and prosecuting a haphazardly small segment of rapists and murderers and sentencing them to life imprisonment, jamming our prisons. What possible point is there to this in a country with 21 022 murders a year and with reportedly over 41 583 rapes a year? Minimum sentences do absolutely no good. They merely divert us from understanding what we should be doing. UCT lecturer Jameelah Omar underscores the importance of institutional capacity, competence, and trust in the system even at the reporting stage for victims of gender-based violence. Ms. Omar makes the point that “bringing back the death penalty, full life sentences for those convicted of sexual offences … are not solutions. Our criminal justice system is flawed, in some ways fatally defective, and needs to be overhauled”. Ms Omar concludes that “law alone is not the solution. Law can only go so far in changing mindsets and beliefs”. What we should be doing is the long slow process of improving police capacity – not necessarily numbers but police competence, responsiveness, training and skills; restoring crime intelligence – which could lead to the successful unmasking of many criminal syndicates perpetrating major armed robberies and associated crimes; and improving the responsiveness and turnover of the NPA. In the meantime there are some things we can and have to do. First, abolish minimum sentences: Scrap minimum sentences immediately for most low-level, nonviolent, or non-serious crimes. This is particularly important for drug-related offenses – mandatory minimums should be eliminated. The Constitutional Court’s judgment in Minister of Justice and Constitutional Development v Prince is a step in the right direction. The Constitutional Court ruled, unanimously, that criminalising the use or possession in private, or cultivation in a private place, of cannabis by an adult for his or her own personal consumption in private, violates the privacy guarantee of Bill of Rights. A significant consideration the Court took into account was the impact of the criminal law. Nor do I mean to take a soft line on white-collar criminals. The fact is that minimum sentences unfairly exempt those at the top end of the criminal food chain, and unfairly impact on the poor and the dispossessed. The ‘war on drugs’ is a hugely expensive and almost entirely pointless waste of lives and resources. More suitable punishments for non-violent drug-related offences include: shorter sentences, probation, community service, electronic monitoring, or medical treatment. Second, release elderly offenders at low risk of committing violence. It is well-established that men over a certain age group have a low recidivism rate. In addition, men over the age of 50 are well established to gradually become less violent. It is a safe bet that violent criminals who have grown old in prison can be released with minimal risk once they have served a just sentence. In most cases, a life sentence is an unnecessary injustice. This should be done according to individual assessment. Third, make bail better, more efficient and more just. Bail should be available on a more flexible basis and not tie accused individuals up in rigid knots. The apartheid system notoriously used detention as a tool of coercion against those threatening the state, with detention without trial for 90 and later 180 days expressly permitted by statute. As a result, the Constitution provides for section 12 and section 35(1)(f) of the Bill of Rights. The effect is that South Africa has no automatic right to bail. The rhetoric of the post-apartheid “crime wave” triggered severe criticism against bail which was blamed for the increase in crime. Condemnation continues to this day. On 3 March 2017, as a response to cracking down on crime then-President Zuma requested that Ministers in the Security Cluster review bail laws to make it more difficult to be released on bail. Later, it was stated that the Minister had initiated a process to review bail laws to make them stricter. Let us go back to the very purpose of bail. Bail is there to “strike a balance between the interests in society (the accused should stand trial and there should be no interference with the administration of justice) and the liberty of an accused (who, pending the outcome of the trial, he is presumed innocent”. What is more, as the Constitutional Court pointed out, “Bail serves not only the liberty interest of the accused, but the public interest by reducing the high number of awaiting-trial prisoners clogging our already over-crowded correctional system, and by reducing the number of families deprived of a breadwinner”. Furthermore, bail is not meant to be punitive. However, stringent bail processes cuts both ways – it has budgetary implications for the state (and us, the taxpayers) as well as affordability problems for the individual detainee. During my recent inspection of the Johannesburg Correctional Centre, a senior official, Mr Madondo, estimated that it costs government R330.00 per day (approximately R10 000.00 per month) to keep a single prisoner, remand or sentenced, incarcerated. This means that cash bail in trivial amounts that an accused cannot afford is not only unjust – it is wasteful, unproductive and inefficient. Apart from these statutory mountains, which many could not surmount, one of the biggest barriers is affordability. Even when the court is satisfied that the interests of justice permit bail, the monetary amount is set without taking the individual circumstances of the accused into account. The statutory provisions foresee this, and provide expressly for it. An authoritative survey indicated 7 486 detainees were being held in detention simply because they could not afford bail (this could decease prison population immediately by 5%). Of these, 76% could not afford bail of R1000 or less. This renders them “prisoners of poverty” – individuals not meant to be there, whose mere inability to pay the required bail amount keeps them locked in prison, where they in turn contribute to overcrowding. My recent inspection to Johannesburg Correctional Centre revealed that there were detainees who could not afford bail of sums as small as R200-R300. This is by no means a new problem. Years ago, it was exposed by Judge Fagan, when Inspecting Judge of Prisons, that at least 13 000 prisoners who could not afford bail as set were being held in prison solely because of poverty. The denial of bail should be based on soundly-assessed danger to society, not on affordability. Remand detainees not being released on bail exacerbates backlogs in overburdened courts. In the 2017/2018 financial year, formal applications in the regional courts took up nearly three-fifths (58.5%) of court time. In the district courts, bail applications consumed three-quarters (76.7%) of court time. The number of applications in the high courts is 33% (a decrease from 41%), the decrease is attributed to a shift of bail applications in the lower courts. The problems with budgetary implications and affordability are exacerbated by the legal framework that regulates bail, which has been amended on various occasions. The tightening of bail to a near-stranglehold emerges from these changes. First, the duty was on the police to release or bring an accused before a court within 48 hours – whereas the duty is currently on the police to bring the accused before court within 48 hours. Second, after-hours bail is no longer an entitlement. Third, bail applications may be postponed under certain conditions, for (a maximum) of seven days at a time. There is no bar for how many times bail hearings can be postponed. These amendments contribute to the number of accused in custody. More serious offences set out in schedule 6 and schedule 5 are regulated by section 60(11) of the Criminal Procedure Act. Section 60(11)(a) necessitates proof of “exceptional circumstances” for bail for schedule 6 offences. The provision places a formal onus on the accused to adduce evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit release. Section 60(11)(b) places an evidentiary burden on the accused when dealing with schedule 5 offences. Both schedules 5 and 6 have increasingly widened in their ambit. The reverse onus was considered highly controversial – yet the Constitutional Court in Dlamini upheld the constitutional validity of the provision as a justifiable limitation of section 35(1)(f). This judgment was a product of its time – the high season of “crime wave”. It has been criticized as an “apologist sentiment”. The judgment, perhaps dissonantly from the Court’s own recent jurisprudence, refers throughout in populist terms to the “crime wave”. Rather, bail should be made more effective: bail processes are pivotal to reducing overcrowding – especially since nearly one-third (30%) of the prison population comprises remand detainees. Some provisions in the governing statute are insufficiently utilised. They may afford ways to reduce the burden that unaffordable bail imposes on accused, remand centres and the courts. Section 60(12): the court may make grant bail subject to discretionary special conditions beyond monetary amounts. Section 63A (1): Overpopulation in prisons poses a threat to the functioning of prisons and the rights of awaiting trial detainees. This is acknowledged in the legislation itself, when Parliament inserted section 63A. If the head of prison (contemplated within the Correctional Services Act) “is satisfied that the prison population of a particular prison is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety of an accused” who meets all the criteria set by section 63A(1)(a) to (c), may apply to a lower court for either that accused’s release on warning in lieu of bail or an amendment of the bail conditions. The accused must have been granted bail and be unable to pay it. This provision directly addresses cases where a lack of financial resources leads to continued incarceration. Yet, this mechanism is not utilised as often as it should. Why is this? Correctional officials may be reluctant to invoke the provision for fear of adverse consequences if they sponsor the wrong detainee. Also, an acknowledgement that current prison conditions are defective could result in civil suits against the Department. Other explanations include the lack of knowledge of the provision amongst detainees. In addition, applications are submitted by the heads of prisons only during the third month of detention when more than half of remand detainees who have been granted bail are detained for two months and less – so by the third month they have paid bail. Also, the procedure is self-evidently too cumbersome. Section 59(1)(a): release on police bail. Section 59(A): prosecutorial bail. Section 72: release on warning. Alternatives: lessons from other jurisdictions: Adult Diversion Schemes: In New Zealand, the Police Adult Diversion Scheme involves a Police Diversion officer assessing the appropriateness of diversion and facilitating the signing of an agreement by the offender, which could include an apology, compensation and commitment to a restorative justice process. Laws banning pre-trial detention under defined circumstances: In an effort to reduce unjust detentions, some jurisdictions prohibit remand detention for certain offences and/or potential sentences. In Armenia, an arrest (and its substitute monetary bail) can be effected only for crimes punishable by more than one year’s imprisonment. In India, where an accused person is unable to furnish any surety for bail within a week of arrest, the accused is deemed indigent and is released on personal bond without sureties. Pre-Trial Services: different interventions aim to ensure that an accused appears at trial and is not rearrested pre-trial. These include: court dated notifications, pre-trial supervision, and risk assessments of independently verified information to assist a judicial officer in determining more equitable bail. In 1997, an American organization established a pre-trial services project to reduce overcrowding of remand detention facilities in South Africa. Although the project was not adopted nationally, one court adopted it – the Port Elizabeth Magistrates Court incorporated a pre-trial service office as part of an integrated Justice System Court Centre. A review in 2001 showed a reduction in time taken to prepare a ready trial docket, improved docket quality and increased conviction rates, effective bail decisions and a reduction in remand detainees. Although pre-trial services require more resources in an already scarce environment, savings will result from fewer detainees. This is a strategy worth revisiting. Inquiry into the ability to pay bail: although South African courts are required to take account of individual circumstances, particularly the financial standing of the accused, this is either not done at all, or not done on a uniform basis. There should be clear and accepted definitions of ‘indigent’ and ‘ability to pay,’ a standard form setting out the accused person’s income, assets and other financial information and obligations, based on a certain threshold where there is a presumption about indigence or inability to pay monetary bail. SALRC recommended that fines ought to be more closely related to the means of the offender. Duty solicitors: reducing pre-trial detention by providing legal services. In Nigeria, in 2004 the project Police Duty Solicitors Scheme (PDSS) was launched. Newly qualified lawyers delivered free legal services for suspects at police stations. A survey in 2011 revealed the project’s success – PDSS released over 10 000 suspects from police stations and prisons, and nearly 80% of the releases occurred at prisons. With our already overburdened Legal Aid system, “creative ideas for replicating such a duty solicitor model that take into account Legal Aid Board’s financial and human resources constraints will need to be considered. The South African Legal Practice Act, for instance, may offer opportunities relating to community services.” \ For bail to be employed effectively, it must operate in a properly functioning criminal justice system. A malfunctioning criminal justice system counter-indicates the benefits of more flexible bail processes. I acknowledge fears in this very city that criminals are allowed to strike murderously again because of laxed bail processes. For instance, Councillor JP Smith stated “we are fighting for the survival of the CBD. Much of the crime, he claims, is the work of hardened gangsters who have been released on bail back on the streets because prisons are overcrowded. Prisoners are disgorged on the streets all the time when occupancy reaches 200%. We have a crisis on our streets”. Also, the recent murder of a Ukrainian tourist Ivan Ivanov whilst hiking along the beautiful Chapman’s Peak Drive has been, allegedly, the result of the lack of vigorous bail applications being effectively opposed. For instance, the lack of proper evidence being put forward in order to properly oppose bail, which in turn results in the wrong individuals being granted bail and bound to re-offend. The individuals accused of the murder of Meghan Cremer, have pending cases and prior convictions, and it is unclear whether the accused were released on bail when the murder took place. Unlawful arrests, frequent police assaults, unlawful remand decisions and improper denial of bail is illustrated in the Constitutional Court decision in De Klerk v Minister of Police. The Court emphasised “the duty of the magistrates to apply their minds to the question of bail is of the utmost constitutional significance. Failure to discharge this duty must result in consequences for the presiding officer involved” as well as the arresting officer whose “subjective foresight of the subsequent detention and harm” meant that the police were held liable for post-court detention. Fourth, Parliament should consider implementing a Sentencing Council to reform or replace mandatory minimum sentences. This would be tasked with developing and reviewing sentencing guidelines. SALRC recommended a break from the common law divergent sentencing and advocated for sentencing principles to be clearly articulated in legislation. This would be supplemented by sentencing guidelines developed by an independent Sentencing Council for a particular category or sub-category of an offence. Judicial officers are encouraged to play a key role on the Council to ensure its independence and to help with institutional knowledge and practical experience. The guidelines established by the Council ought to be flexible to ensure departure in appropriate circumstances. Comparable jurisdictions use a sentencing council. Our Parliament has yet to take this up. Under the current system of minimum sentencing, the same sentence applies for drug trafficking as for murder. Unnecessarily harsh sentencing should be reviewed and replaced. It is important to ensure proportionality between the various types of crime. Fifth, we should explore treatment for the mentally ill. Our prisons are not currently equipped to treat those with mental health or addiction problems. Sixth, the use of super-max or isolation facilities should be approached with great caution because of their adverse impact on inmate health and mental health and because of the potential for abuses. Seventh, as Gareth Newham, of the Institute for Security Studies, recommends, we have to address the key drivers of violence. Since most violent behaviour is learnt at home and in communities it is imperative to invest in evidence-based interventions and programs. This includes positive parenting programs, after-school care, anti-bullying campaigns at school as well as other initiatives to tackle the root causes of gender-based violence. Eighth, we should reconsider the initial recommendations made by the SALRC. These include important innovations in crime management and in sentencing as a response to it: A cooperative approach to reform sentencing. In order for any sentencing reform to make an impact, it requires all three branches of government to cooperate and work together to form an effective criminal justice system. A restorative justice approach that advocates for giving victims an increased role in the sentencing process. This is not namby-pamby thinking. The SALRC soundly considered the idea. It then proposed a new sentence of reparation. This includes elements of both restitution and compensation. The overall proposal is that the sentencing court must consider some form of reparations in every case. This may be independent or combined with other sentences and in addition imprisonment or a fine may be suspended on condition of reparations. Other procedural innovations have been designed to ensure victims have a more active role. In Canada, the Restorative Justice Act was introduced in 2015 to support the use of restorative justice programs and policies. In addition, the Canadian Criminal Code promotes the use of restorative justice mechanisms (victim offender mediation programs, circles of support and accountability, peacemaking circles, healing and sentencing circles). In addition, New Zealand provides for restorative justice programs through its Sentencing Act, Parole Act and Victims Rights Act. Restorative justice processes can operate at different stages in the criminal justice system. These recommendations are in line with other jurisdictions that are gradually shifting away from the minimum sentencing regime. Conclusion: This lecture is not blind to the harsh realities and horrors of crime. But the fact is that our current criminal justice system’s approaches to crime are so ineffective and counter-productive that we find ourselves in a frightening crisis: we are terrified of crime and yet we are trapped in our futile response. We find ourselves in a frightening vortex. If we want to curb crime, it is in our own self-interest to find solutions that will effectively reduce crime. This is because of the fluidity of the prison population to ensure that prisoners whether sentenced or awaiting trial live in conditions consistent with human dignity. It is a myth that prisons are impermeable. Prisoners are part of our society and, conversely, society seeps porously into prison. What we do to prisoners comes back to haunt us when they return to society. We cannot condone the absence from almost all our prisons of effective training courses and other rehabilitative programs. During my visit to Devon Correctional Centre in June 2017 we discovered that a skills centre (workshop) offered welding and spray painting, taught by long-term inmates. However, we were informed that the Centre was short of steel and welding rods and steel paint, and that budget had run out. In particular, we need to ensure that bail processes are effective and fair, and that they truly balance the interests of the accused against the interests of society. The point those complaining about release on bail of dangerous offenders make is well warranted and correct (para 97 above). It is a point about systems. Their complaint is about a misleading, misdirected and inefficient system of crime intelligence, crime detection and evidence gathering. And the anger about bail processes is justified. But what our bail processes at present are doing is to release the criminally dangerous while keeping thousands upon thousands of criminally non-dangerous incarcerated. We therefore have to introduce sharper, keener, more efficient and better-informed bail processes. Minimum sentencing legislation has failed us. It has created inconsistent sentencing patterns that perpetuate a ‘lock up and throw the key away’ mantra that does not effectively deal with reducing or deterring crime. While intended to be a temporary fix, is in no way sustainable. It is time to find more permanent solutions. Our national response to AIDS – another insidious and frightening threat to our democracy – invites comparison: not because of the viral impact but because we mishandled it so catastrophically. The same applies to crime. We should rigorously seek evidence-based solutions. Until now, we have not. As with AIDS, this costs us dearly. We are struggling so much to stop ourselves from drowning that we are not learning to swim. We are so stuck in our crisis that we are not seeing the solutions available to us. There are reasons to be optimistic. The new government is currently gradually addressing the insidious harms of criminal syndicalism, through the Zondo Commission of Inquiry into Alleged State Capture. A new and credible head of the NPA has taken office. And, significantly, the new Minister of Justice and Correctional Services Mr Ronald Lamola concedes that the minimum sentencing legislation has contributed to the increasing prison population, which has led to overcrowding that has negatively impacted the functioning of correctional centres and the conditions for inmates in prisons. On gender based violence and the call to reinstate the death penalty, the spokesperson for Minister Lamola has stated that the death penalty will not deal with femicide and other forms of violence against women and children. In addition, recent judgments handed down by the Constitutional Court indicate a strong commitment to a just system and a willingness to challenge the mechanisms developed during the post-apartheid “crime wave.” There does appear to be political will to tackle the perils of our criminal justice system. The social, legal and political arena has changed significantly. Yet, with the current surge in crime we must not revert to perpetuating the pointless punitive justice rhetoric and policies. We have tried them. And they have not worked. It is imperative, and in our own interests, to consider a more restorative and rehabilitative approach to justice coupled with victim-focused measures and institution-building. And this is in line with global trends. There are no simple quick solutions. 1

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The Crisis of Criminal Justice in South Africa

The Crisis of Criminal Justice in South Africa

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