Powerpoint Presentation #2 South Africa
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SouthAfrica.docx
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CHAPTER 4: SOUTH AFRICA
Concepts to Know
· Afrikaner
· Apartheid
· Natives Land Act (1913)
· African National Congress
· National Party
· Group Areas Act (1950)
· Nelson Mandela
· Freedom Charter (1955)
· Truth and Reconciliation Commission
· Ubuntu
· National Assembly
· Public Protector
· Independent Police Investigative Directorate
· S v. Makwanyana (1995)
· Judicial Service Commission
· Law Reform Commission
· Constitutional Court
· Advocates
· Assessors
· Inspecting Judge
· NICRO
· Child Justice Act (2008)
SOUTH AFRICA encompasses the southern tip of the African continent. It is the ninth largest country on the continent and the thirty-third largest in the world. Its northern border is shared with Namibia, Botswana, Zimbabwe, Mozambique, and Swaziland. Its coastline borders the Indian Ocean on the east and south and the Atlantic Ocean on the west. In addition, South Africa surrounds the small country of Lesotho, which is approximately the size of the state of Maryland. Lesotho is a constitutional monarchy that gained its independence from the United Kingdom in 1966 (see Figure 4.1 ).
The population of South Africa is almost 53 million and consists of 79.5 percent black, 9 percent white, 9 percent “colored,” and 2.5 percent Asian or Indian residents. The use of the word “colored” in the South African context refers to people of mixed race and often is associated with people of African and Dutch ancestry. The principal industries of the country are minerals, mining, motor vehicles, and machinery. South Africa is a significant producer of platinum, manganese, gold, and chrome. Its major trading markets include China, Germany, the United Kingdom, and the United States.
South Africa has 11 official languages: Afrikaans, English, isiNdebele, isiXhosa, isiZulu, Sepedi, Sesotho, Setswana, siSwati, Tshivenda, and Xitsonga. With the exception of Afrikaans and English, the other languages are all Bantu languages. Bantu languages are spoken by more than 100 million Africans in east, central, and southern Africa. Afrikaans is a seventeenth-century variation of Dutch that has been considered a distinct language since the nineteenth century. Approximately 7 percent of the South African population are Afrikaners, that is, people who trace their roots to the early Dutch, French, and German settlers. Most of the English spoken is by nonwhites, along with approximately 2 million English-speaking whites who trace their ancestors to British immigrants and to the 1 million people of Asian/Indian origins.
Throughout the second half of the twentieth century South Africa was associated most with its policy of apartheid, a white supremacist ideology that emphasized white domination and racial discrimination. More will be said about apartheid shortly. First, an outline is offered of the arrival of white Europeans to this part of Africa and the pre-apartheid policies of racial segregation that had been introduced and in practice for a number of decades before the advent of what is considered the apartheid era.
What prompted Europeans to travel to the southern tip of Africa was the search for a direct route to India and access to the spice trade. Initially, Portugal dominated this route, but they soon found themselves in competition with Dutch, English, and other European merchants by the seventeenth century. These merchants would stop at the Cape peninsula to renew their fresh water and take on other supplies, such as timber for masts and fresh meat and vegetables. This was accomplished by trading with the Khoikhoi people. The Khoikhoi were pastoralists and moved with the seasons in search of pasture land for their sheep and cattle. Thus, they had not established permanent settlements as that term was understood by the Europeans.
In 1652, the Dutch East India Company, the world’s most significant trading company, with a fleet of around 6,000 ships, established a station at Table Bay on the Cape peninsula. The station commander, Jan van Riebeeck, was authorized by the Company to build a fort and to establish a more permanent supply station. In order to create the station, laborers were needed. While some laborers came from Europe, the Company relied on slaves. The slaves came from African regions that are today known as Angola, Mozambique, and Madagascar, but a larger number came from Indonesia, India, and Ceylon (the former name for Sri Lanka). Thus, the Company was not capturing the local Khoikhoi and turning them into slaves. It is interesting to note that there were some free blacks living in Cape Town in the seventeenth century and that, by the end of the century, they were required to secure a pass if they wanted to leave the town. The significance of the pass will become apparent shortly.
Figure 4.1 South Africa
Map courtesy of Bruce Jones Design Inc.
The Company also began to release some of their employees from contractual service and provide them with land. This land had obviously been used by the Khoikhoi for centuries. The objective was to have these “free burghers” farm the land and thus supply the Company with the provisions that the Khoikhoi people provided. Such farming settlements were enclosing land and thus were infringing on the pastoral lands of the Khoikhoi, which caused tension and armed conflicts. In addition, the Khoikhoi population was small to begin with, and it was reduced further by death to diseases imported by the Europeans. Another problem confronting the Khoikhoi, on occasion, was the movement of Bantu-speaking Africans who were continuing their southern migration in search of better land. The Bantu were both farmers and pastoralists. As a result, tensions and armed conflicts occurred between the Bantu and Khoikhoi. In time, the Bantu would also be warring with the white farmers, who continued to move north in search of more land and water. The descendants of these Bantu people represent the vast majority of blacks in South Africa today.
During the French Revolutionary Wars (1792–1802), the British were concerned that Napoleon might seize Table Bay and disrupt their trade route to India. As a result, the British took control of the Cape settlement in 1795. Following the Treaty of Amiens (1802), which temporarily halted the conflict between France and Britain, the settlement was returned to the Dutch. When the terms of the treaty failed, the British seized the Cape a second time in 1806, and in 1814 the Dutch conceded their claims to the Cape.
The British proceeded to pass legislation that required all free blacks to carry a pass that indicated their place of residence and employment. If a person did not have a pass, they could be forced into work for a white master. Legislation also permitted discriminatory practices in the pay of blacks. Moreover, the British army was coming to the aid of the white farmers, who were called Boers (an Afrikaans word for farmer), in particular the Trekboers, who were migrating into the lands occupied by Africans. The British army expelled some Bantu settlements in bloody conflicts and attempted to establish a fixed frontier by settling 5,000 British immigrants on small farms. The Boers opposed both closing the frontier and creating British immigrant farming settlements. Not the least of their reasons was the scarcity of water and arable land.
In Britain, Parliament was working against the policies established in the Cape. First, they ended British involvement in the slave trade in 1807. Second, British missionaries petitioned Parliament to end the unfair labor practices directed at Africans, and this was achieved in 1828. Finally, Parliament abolished slavery throughout the empire in 1833. The Dutch speakers in the colony had opposed British rule in general and the aforementioned policy changes in particular. It was in 1836 that the Boers began to move incrementally out of the Cape area with the goal of settling beyond British control. This exodus would be referred to as the Great Trek and the people as Voortrekkers or pioneers.
During the 1840s and 1850s, these Voortrekkers established the Orange Free State and the South African Republic. Bloemfontein was selected as the capital of the Orange Free State, while Pretoria was the capital of the South African Republic. Each of these states created a constitutional government with an executive and legislature. The right to vote was limited to white males, which was not unusual in the Western world at that time. Those Africans who lived within these states were not allowed to own land and were not acknowledged as being equal in the law. By the end of the 1860s, the British had also established their dominance in two colonies, the Cape Colony and Natal. A number of Africans lived in the Voortrekker and British areas, but most continued to reside in traditional African communities that were ruled by kings and chiefs.
The second half of the nineteenth century was marked by two themes. First was the discovery of minerals. Diamonds and then gold had a significant impact on the economy of the region. Those emerging industries not only employed whites, but there was a significant demand for African laborers, and they came from throughout southern Africa seeking employment, which created another tension from the more indigenous South African laborers. In order to assure the availability of cheap labor, the British reversed some of their policies of the late 1820s and early 1830s that were designed to treat blacks more equitably.
The town of Kimberley was established in the initial rush to the diamond fields. It would prove to be a model for what was to come regarding discriminatory practices against Africans. To illustrate, the pass law was reintroduced for the workforce, in particular the African laborers. The pass determined if the person was authorized to work in the city, what contractual obligations the person was under, and whether the person was entitled to leave the city. Special fenced compounds were constructed where the black laborers had to live during the tenure of their contracts. Courts were established for the sole purpose of handling pass law violators, and armed guards were employed by the mining companies to maintain order in the fenced compounds.
The second theme of the second half of the nineteenth century was the ongoing tension and fighting that occurred between the Afrikaner population and the British, or between an African community and one of the white settler groups. Time does not permit the identification or narration of the various battles. What is important to note is that it was during this period of tension and strife that the germ of an Afrikaner nationalist identity began to emerge.
The Afrikaner identity that emerged utilized a distinct view of their history in Africa and associated it with the Calvinist theology of the Dutch Reform Church. It is important to stress that this perception of the Afrikaner community did not take hold until the onset of the twentieth century. Moreover, it was not embraced immediately by a majority of Afrikaners. Part of the reason the nature of this identity did not take hold earlier was the original Dutch settlers were not terribly religious, nor were many literate. Over time they acquired the skills to read and write, but few if any were nuanced in the theological debates that were being carried out in the seventeenth-century Dutch homeland.
The early stages of this Afrikaner nationalist identity claimed that they had the right of conquest to the land in South Africa. Over time they had divorced themselves from their Dutch ancestors and viewed South Africa as their homeland. They considered themselves Afrikaner with their own distinct Afrikaans language. Part of the logic of this right of conquest was associated with the view that they were fulfilling a special mission of God. The roots of this theological perspective were traced to the seventeenth-century debate over the doctrine of predestination, a central feature of Calvinism and thus of the Dutch Reform Church. The doctrine held that God had already determined that some people would be saved while others would be damned. The Dutch had settled this matter in 1618 at the Synod of Dort, where the Dutch Reform Church embraced a conservative view of this doctrine. Thus, the Afrikaners considered themselves among God’s chosen people, which further enhanced the righteousness of their mission and their imagined superiority, in particular to other races.
The dawn of the twentieth century was marked by the South Africa War (1899–1902), which was fought between the British and Afrikaners. While the British were victors in the war, the British government realized that the majority of whites in South Africa would remain Afrikaners. The government concluded that the four white colonies that existed at that time in South Africa (the Cape, Natal, Orange River, and the Transvaal) should create a single dominion state that would establish a parliamentary system of governance. Dominion meant that the state was granted self-governing status within the British Empire. Political power would be determined by majority rule, and each colony would determine who was eligible to vote. The Cape and Natal employed a property qualification, while the Orange River Colony and the Transvaal prohibited all blacks from the right to vote. Finally, it was determined that English and Dutch would be the official languages of the new state. This arrangement was changed when Afrikaans replaced the Dutch language in 1926.
From the onset, tensions arose over where the capital of the new Union would exist. A compromise was reached that was designed to allow at least three of the provinces to benefit. It was determined that Pretoria (Transvaal) would be the seat of the executive or administration; Cape Town (Cape Province) would be the seat of Parliament; and Bloemfontein (Orange River Colony) would be the location for the Appellate Division of the courts. This arrangement continues to exist to this day.
In 1910, the Union of South Africa was officially created. Shortly thereafter, legislation was approved that either legally condoned policies that were practices before the Union or established new laws designed to discriminate against Africans. For example, it was a criminal offense for blacks to strike, according to the Native Labor Regulations Act (1911). While the Mines and Works Act (1911) did not mention race or color, nevertheless, it was used to prevent blacks from competing with white workers for skilled jobs. Finally, the Natives Land Act (1913), which became a key component of future legislation in the apartheid era, regulated the ability of Africans to acquire land. Essentially, the law restricted black ownership of land to reserves that were set aside by the government. While blacks represented approximately 70 percent of the population, the reserves amounted to less than 8 percent of the land. Whites, on the other hand, accounted for less than 20 percent of the population but were accorded more than 90 percent of the land.
It should be noted that when the Natives Land Act was under consideration in Parliament, the South African Native National Congress (SANNC), which was founded in 1912, opposed the legislation. They even petitioned the British government to intervene; this effort failed, however. In 1913, this group was renamed the African National Congress (ANC). Also in 1912 in Bloemfontein, a group of Afrikaners founded the National Party. More will be said about both of these organizations shortly.
During World War I (1914–1918), there was a good deal of controversy among white citizens over whether their country should side with the British. As a British dominion, the South African government elected to send troops on behalf of the British. Many Afrikaners were opposed to this decision, in part because Germany provided aid to them during the South Africa War (1899–1902). Entry into the war enhanced the standing of the National Party among Afrikaners.
The issue of taking sides in World War II (1939–1945) was even more heated. Some favored entry on the side of the British; others wanted to support Germany; and some suggested neutrality. South Africa again ended up fighting on the side of the British. For those who favored supporting Germany, part of the appeal was associated with the German National Socialists movement, which emphasized German racial superiority. Within the National Party, there was a group committed to establishing a fascist society in South Africa.
During the war, a number of Afrikaners were held for antiwar activities. Of course, many white males were off fighting in the war. With the wartime demands in various industries increasing, there was a need to employ blacks in sectors previously reserved for whites. As a result, blacks began to work in urban areas, and squatter communities were created on the borders of various cities to accommodate them. This movement of Africans from rural to urban areas became a significant source of concern at the conclusion of the war, because such developments were at cross purposes with the ideology of segregation that existed both before and after the creation of the Union of South Africa. In fact, a few years before the outbreak of World War II, the South African Parliament approved the Natives Laws Amendment Act (1937), which was specifically designed to limit the size of the African urban population and to restrict their mobility. The National Party planned to address these issues in what would become known as the apartheid era.
This lengthy prologue to the Apartheid Era section of this chapter was designed to indicate that the discriminatory practices based on race had a long history before apartheid was introduced as the official and central policy of the South African government (see Byrnes, 1996; Fredrickson, 1981; Ross, 1993; Sparks, 1997a; Thompson, 1995). For those who are students of history, it also illustrates that many of these discriminatory practices that were present and thriving in South Africa could also be found in other areas of the world that were or had been colonized by white Europeans. Thus, the issue of racial supremacy was not unique to South Africa. Admittedly, it would receive a good deal of well-deserved adverse publicity and criticism throughout much of the second half of the twentieth century. It would be labeled a pariah state by a number of countries, including several that were not exactly paragons of virtue when it came to their own past and, at the time, current record on racial matters.
The Apartheid Era
The 1948 elections were to pit the United Party and the National Party against one another for control of the South African government. The United Party had the support of a significant number of English-speaking voters. It argued that total segregation was impossible. Although they were not supporting integration, they did acknowledge that African labor was needed in urban areas to assist with the various demands of South African industries. Moreover, they recognized that the extreme poverty on the African reserves was a significant factor drawing blacks to urban areas seeking employment.
The National Party’s support came almost exclusively from the white Afrikaans-speaking population. They strongly opposed the United Party’s position. They maintained that a policy that emphasized apartheid (Afrikaans for separateness) would protect white society from being overwhelmed by the superior number of blacks in the country. The National Party won the election and became the governing political party on June 4, 1948; it would not relinquish that political authority until May 9, 1994.
The National Party was first led to victory by Daniel F. Malan, a former minister in the Dutch Reformed Church, who would serve as prime minister from 1948 to 1953. Malan had a two-pronged strategy that involved emphasizing both nationalist and apartheid policies. With regard to his nationalist strategy, he initiated efforts to divorce South Africa from the influence of the United Kingdom, some of which had a basis in law. To illustrate, the South African Citizenship Act (1949) established South African citizenship for the first time. Prior to this legislation, South Africans were not citizens of the country but rather subjects of the British Crown. This legislation was designed to protect the Afrikaner majority among the white population. In addition, South Africans had the right in law ultimately to appeal decisions in South African courts to the British Privy Council in London. The Privy Council is an ancient British institution that traces its origin to the early days of the monarchy. The majority of the functions of the Privy Council are handled by committees. The most important of these is the Judicial Committee that was established in 1833. It serves as the highest court of appeal for some independent Commonwealth countries and for overseas territories of the United Kingdom. In the South African context, this right of appeal ceased to exist in 1950 when the South African government made the Appellate Division of its Supreme Court the ultimate court of appeal in South Africa.
Malan was also active in introducing a number of pieces of legislation that were central features of the apartheid policy agenda. These included:
· Prohibition of Mixed Marriages Act (1949): Prohibited the marriage of whites with people of other races.
· Immorality Amendment Act (1950): Prohibited adultery, attempted adultery, and extramarital sex between whites and blacks. Homes were invaded, people were arrested, and those found guilty were sentenced to jail, with blacks often given a longer sentence than whites.
· Population Registration Act (1950): Created a national register of the race of every person. Four distinct racial groups were identified: white, black, colored, and other. Linguistic and physical characteristics were often employed to determine a person’s race. This law was a central feature of apartheid.
· Group Areas Act (1950): Forced the separation of races by the creation of separate residential areas for whites, blacks, colored, and Asians/Indians. This led to the forced removal of people who for years had lived and worked in a neighborhood that had now been deemed both a residential and business area for a different race. This law was also a central feature of apartheid.
· Bantu Building Workers Act (1951): Enabled blacks to be trained in a building trade, which had previously been reserved for whites, but made it a criminal offense to perform the skill in an area that was not designated for blacks. Bantu refers to a black African.
· Separate Representative of Voters Act (1951): Removed those people identified as colored from the voting rolls.
· Prevention of Illegal Squatting Act (1951): Authorized the removal of blacks from public or private property and established resettlement camps for these displaced people.
· Bantu Authorities Act (1951): Created black bantustans (homelands) and established regional authorities with the objective of permitting self-government in the homelands. Blacks were assigned a homeland that was based on their native group. It was not uncommon, however, for the records of one’s native group to be incorrect. This only added to the frustration confronting many blacks in general and families in particular. The political rights of blacks, which included the right to vote, were restricted to their homeland. This legislation essentially stripped blacks of any claim of the right to participate in the national government.
· Natives Laws Amendment Act (1952): Defined which blacks had the right to live in a town. Blacks who were born in a town and lived there continuously for 15 years or those who had been continuously employed for 15 years or who had worked for the same employer for 10 years met this criterion.
· Natives (Abolition of Passes and Co-ordination of Documents) Act (1952): Known as the Pass Laws legislation. In spite of the confusing wording in the title of this legislation, it forced blacks over the age of 16 years to carry identification with them at all times. Known as a dompas, the passbook had features similar to that of a passport. The pass included the person’s picture, fingerprints, place of origin, employment record, tax records, permission to be in an area of the country, and involvement with the police. If a black worker displeased his white employer, the employer might elect not to endorse the passbook. This could lead the authorities to expel the worker and his family and send them back to a bantustan. A black could not leave his homeland without a permit from a local authority, and once in an urban area, he or she had to secure a permit to seek work within 72 hours of his or her arrival. Moreover, it was a crime not to be able to produce the pass. Thousands of blacks were arrested and jailed, often for technical violations of this legislation. This law was also a central feature of apartheid, and of all the apartheid legislation, it was undoubtedly detested the most by blacks because of the disruption it caused in the lives of all family members and the ever-present fear that the authorities would discover either a significant or petty violation of the pass law rules.
· Native Labor (Settlement of Disputes) Act (1953): Prohibited black laborers from striking.
· Bantu Education Act (1953): Established the Black Education Department within the national Department of Native Affairs. This Education Department designed a curriculum that the national government felt was suitable for black Africans. The legislation limited the educational opportunities for blacks; it was specifically geared for teaching them skills that would enable them only to be employed in common laboring jobs under the direction of whites.
· Reservation of Separate Amenities Act (1953): Enabled segregation between whites and other races in the context of all public amenities, such as beaches, park benches, swimming pools, public toilets, theatres, cemeteries, public buildings, and public transportation. In white areas, restaurants and hotels did not admit blacks unless they were staff members. This law also applied to schools and hospitals. With regard to these two entities, the services for blacks were glaringly inferior to those found in the separate institutions provided for whites. This legislation was designed to reduce contact among the races by establishing signs that read: Europeans Only or Non-Europeans Only. For students of American history, this legislation was, of course, strikingly similar to that established in the United States, in particular but not limited to the Southern states.
· Public Safety Act (1953): Authorized the government to declare a state of emergency and to suspend all laws.
· Criminal Law Amendment Act (1953): Increased the penalties for opposition to a specific law. Anyone who was found accompanying a person found guilty of such an offense was also presumed guilty and thus had the burden to prove his or her innocence. Penalties could involve a fine, imprisonment, and whippings.
Obviously, this legislative agenda was all-encompassing in its ability to ensure the success of apartheid policies. The legislation that was specifically designed to control the residence and employment status of blacks required an enforcement strategy and necessitated the development of an extensive police force. Not only was there a significant increase in the size and powers granted to the police in white areas, but there was also a need to recruit more black police, in particular to work in the various townships that had developed on the borders of towns and cities and that had been expanding in number and size of population. Harsh police tactics would inevitably lead to protests and riots, which in turn sparked more police raids, in particular early morning raids that were designed to check on the status of one’s pass documents.
Daniel Malan was succeeded as prime minister by J. G. Strijdom, who served from 1953 to 1958. During his tenure, three additional pieces of apartheid legislation were enacted:
· Industrial Conciliation Act (1956): Reserved specific categories of work for members of racial groups. Under this legislation, whites were assured an increase in their rates of pay over that of non-whites.
· Native Administration Act (1956): Was an important feature of the government’s security legislation that enabled the authorities to exile blacks to remote rural areas of the country.
· Official Secrets Act (1956), along with the Customs and Excise Act (1955): Enabled the government to censor books, films, and other items that were either imported or produced in the country.
In addition, it was during this time that the government initiated a policy of forced removals. It was mentioned earlier that the Group Areas Act (1950) was designed to force the separation of races by creating separate residential areas for whites, blacks, colored, and Asians/Indians. This led to the forced removal of people who for years had lived and worked in a neighborhood that had now been deemed both a residential and business area for a different race. As mentioned, this law was a central feature of apartheid. The first major removal occurred in 1955 in Sophiatown, an old black settlement area in Johannesburg. The homes of approximately 50,000 blacks were leveled, and the people moved to an area southwest of the city that was to become part of a new planned township for blacks, hence the name Soweto. The area that was once Sophiatown became a white suburb. Other cities, like Durban and Cape Town, experienced significant forced removals. Moreover, this policy was not limited to blacks, for coloreds and Asians/Indians were also victimized. In some cases, even whites were moved; this was more apt to happen when the black homelands were created and in some cases expanded in size. This policy of resettlement would continue into the early 1980s. Thus, this was yet another issue that people, in particular blacks, were fearful of having to confront. It was also another illustration of the anger directed at the heavily armed police, who were called upon to maintain some semblance of order while the removals were being carried out.
Strijdom was also noted for his efforts to continue the process of decreasing relations with Britain. His ultimate goal was to have South Africa become a republic, but this did not happen during his tenure. He did move in the direction of having the South African Parliament acknowledged as the highest authority in the country. The emphasis on parliamentary sovereignty would limit the authority of courts in the realm of judicial review. It was also during his time as prime minister that a high-treason trial of 156 people was initiated. One of the accused was a lawyer, who was also a leader in the African National Congress, by the name of Nelson Mandela.
Strijdom was succeeded as prime minister by Hendrik F. Verwoerd, who had been a professor of applied psychology and had served as the minister of native affairs, which was the ministry largely responsible for implementing much of the apartheid legislation. He would serve as prime minister from 1958 until 1966, when he was assassinated in the South African Parliament by a parliamentary messenger who happened to be colored.
During Verwoerd’s tenure, only two pieces of legislation were added to the long list of apartheid laws:
· Extension of University Education Act (1959): Prohibited blacks from attending white universities and established a separate system of higher education for blacks, coloreds, and Asians/Indians. These institutions were inferior to those provided for whites, because the budget for higher education favored the white universities.
· The Promotion of Bantu Self-Government Act (1959): Classified black people into one of eight ethnic groups. Each group would develop a homeland that would be administered independently from the white authorities. This included the establishment of hospitals, schools, and a police force. In light of the location of the homelands, which is some of the least favorable land in the country, and the inadequate resources earmarked for this endeavor, the idea was designed to fail from the start.
It was during Verwoerd’s administration that the Sharpeville massacre occurred. On March 21, 1960, people had gathered to protest the requirement to carry a pass book. Violence erupted, and the police killed at least 67 people, many having been shot in the back, and wounded an additional 186. This prompted work stoppages, various demonstrations, and peaceful marches. The government’s response was to declare a state of emergency, arrest roughly 18,000 demonstrators, and outlaw two of the leading black organizations, the African National Congress and the Pan Africanist Congress.
Another event that had historical significance in the apartheid chapter was the Rivonia Trial. On October 30, 1963, 10 defendants appeared in court, charged with sabotage. One defendant, Nelson Mandela, was already in prison serving a five-year sentence on another charge. The maximum sentence for the offense was the death penalty, which the Verwoerd government supported. The trial ended in June 1964, with eight of the defendants sentenced to life imprisonment; none were sentenced to death. This commenced the 27-year period of Nelson Mandela’s incarceration in the South African prison system, much of it spent on Robben Island, which is situated off the coast from Cape Town.
Finally, one of the things that Verwoerd was particularly noted for doing on the international stage was the withdrawing of South Africa from the British Commonwealth of nations and establishing South Africa as a republic. By 1960, a number of white South Africans were calling for the government to sever its ties with the Commonwealth. The National Party was, in part, motivated to proceed by the fact that the census indicated that there were more Afrikaners than British, which would assure them success once the matter was brought to the white voting public in a referendum. Government leaders considered establishing a republic as a method of unifying the country, clarifying South Africa’s constitutional position, and enabling it to deal with its internal issues without the concern over possible foreign intervention. Of course, Britain, having fought two world wars in the century, was not exactly in a position politically, militarily, or economically to intervene in the affairs of South Africa.
In addition, a number of African and Asian countries that were members of the Commonwealth and were seeking or had gained their independence were calling for South Africa’s removal from the organization in light of its apartheid policies. In addition, a large number of African countries were gaining their independence as the old colonial empires receded following the end of World War II. For example, in the 1950s, Egypt, Sudan, Tunisia, Morocco, Ghana, and Guinea became independent. In 1960 alone, Chad, Benin, Nigeria, Ivory Coast, Madagascar, Central African Republic, Mali, Niger, Senegal, Burkina Faso, Mauritania, Togo, Zaire, Somalia, Congo, Gabon, and Cameroon followed suit. From 1961 to 1966, Sierra Leone, Algeria, Burundi, Rwanda, Uganda, Kenya, Tanzania, Malawi, Zambia, Gambia, Botswana, and Lesotho would join this group. Finally, the establishment of the United Nations in 1945 was also a factor. One of its goals was promoting human rights and the recognition of certain fundamental freedoms irrespective of one’s race, sex, language, or religion. Obviously, such lofty ideals were at cross-purposes with the government of South Africa.
In early 1961, legislation was introduced to establish South Africa as a republic. In short order, the constitution was drafted and approved, and South Africa withdrew from the Commonwealth. The major constitutional change establishing South Africa’s first independent constitution was that the office of president would replace that of the British monarch as the ceremonial head of state. It is also important to draw attention to section 59 of the Constitution of the Republic of South Africa (1961). Part 1 proclaimed: “Parliament shall be the sovereign legislative authority in and over the Republic, and shall have the full power to make laws for the peace, order and good government of the Republic.” While retaining the parliamentary system of governance, this was a clear indication of South Africa’s independence from any foreign government. Part 2 stated: “No court of law shall be competent to enquire into or to pronounce upon the validity of any Act passed by Parliament. . .” This was a clear message to courts that judicial review would be limited and that parliament was supreme. This notion had been espoused by Prime Minister Strijdom; it now had the force of constitutional law. It enabled the government’s policy of white supremacy to continue unchecked in the South African courts.
As mentioned earlier, the South African government was receiving adverse publicity and criticism with the development of its apartheid policies. As an aside and in light of our more recent attitudes of condoning states interfering in the affairs of other states on the grounds of human rights issues, the question might be raised as to why Western democracies did not do more to stop the abuses of apartheid. One part of the answer has already been alluded to; that is, a number of countries had not fully addressed their own history or extant policies associated with racial discrimination.
The other more telling answer to the question has to do with the period when apartheid was established and implemented. It was the time of the Cold War, when the international world order was essentially dominated by a bipolar system in which most countries tended to side either with the United States and its allies or the Soviet Union and its allies for security purposes. The United States was espousing democratic principles, while the Soviet Union was attempting to advocate the virtues of a communist system of governance. Africa, with all of those emerging independent countries previously mentioned, was a prime area to engage people in the virtues of one side or the other in this ideological debate and at times war. Some African countries had already begun to embrace the communist ideals, while South Africa had a long history of opposing communism. In fact, the apartheid government banned the South African Communist Party through the passage of the Suppression of Communism Act (1950). In spite of its flaws, the South African government was on the side of the West, led by the United States in this matter. As such, criticisms of its domestic policies were often muted. Of course, this foreign policy attitude exists across the international community to this day. For example, a state secures the support of another state and befriends it on the international stage, but it also finds the domestic policies of that state at cross-purposes with its own values. Oftentimes the establishment and maintenance of friendships on the international stage with other states is considered so vital that it often trumps any discomfort a country might display toward the domestic policies of the befriended state.
Returning now to the situation in South Africa in the 1960s, Verwoerd, along with his successor, B. J. Vorster, who would serve as prime minister from 1966 to 1978, were noted for the harsh manner in which they enforced the apartheid laws. At a time when much of the world was at least embracing the idea of universal human rights, their brutal methods of enforcing the white supremacy agenda displayed a total disregard for the rule of law, as that term was understood in much of the Western democracies of the world. As an aside, it should also be noted that it was during Vorster’s tenure that the legislation prohibiting television was finally revoked in 1976. The government was of the opinion that this medium corrupted public morals.
During Vorster’s tenure, two additional pieces of apartheid legislation were enacted.
· Bantu Homelands Citizens Act (1970): All black people had to become citizens of the homeland associated with their ethnic group and had their South African citizenship excised.
· Afrikaans Medium Decree (1974): Required the use of Afrikaans and English on an equal basis in all high schools outside the homeland areas. Thus, black high schools in the townships were mandated to follow this decree. This was another factor that contributed to student unrest in the townships and led to student protest marches and the destruction of a good deal of school property.
As previously mentioned, all the apartheid legislation required an enforcement strategy. The criminal law and legislation associated with the criminal justice system were important parts of the overall strategy designed to facilitate the objectives of the apartheid agenda. Two pieces of that kind of legislation have already been referenced. The Public Safety Act (1953) enabled the government to declare a state of emergency and to suspend all laws. The Criminal Law Amendment Act (1953) increased the penalties for opposition to a specific law, and those penalties could include a fine, imprisonment, and whippings.
There were other pieces of legislation that were designed to ensure the success of the supremacy of the white race in South Africa that had specific impacts on various components of the apartheid criminal justice system. They included:
· Riotous Assemblies Act (1956): Presumably enacted to prevent the gathering of groups that opposed the government’s apartheid agenda.
· Special Criminal Courts Amendment Act (1958): Established special courts to handle cases involving treason and violations of the Suppression of Communism Act (1950).
· Prison Act (1959): Stated that any unauthorized report of prison conditions was illegal.
· Criminal Procedure Amendment Act (1958): Added robbery and housebreaking, when committed under aggravating circumstance (i.e., a threat of serious bodily harm and/or the possession of a dangerous weapon) to the list of capital crimes. Until this legislation, only treason, murder, and rape were capital offenses.
· Unlawful Organizations Act (1960): Banned the African National Congress and the Pan African Congress.
· Sabotage Act General Laws Amendment (1962): Expanded the definition of sabotage to include strike actions; it permitted detention for up to 90 days without trial; and sabotage was made a capital offense. Moreover, the definition of terrorism was also extended to include acts that endangered law and order, public safety, and health; placed in jeopardy the food, water, fuel, and power supply; and obstructed medical and municipal services. Finally, it indicated that those who trespassed on any land or building or who destroyed private or public property could also be charged with terrorism.
· Criminal Procedure Amendment Act (1965): Enhanced the period of detention without trial from 90 to 180 days and made kidnapping and child stealing capital crimes.
· Terrorism Act (1967): Authorized the indefinite detention of people who were not accorded the right to a trial. It also created the Bureau of State Security (BOSS), which was charged with the internal security of the country.
· Abolition of Juries Act (1969): Abolished trial by jury completely.
· Internal Security Amendment Act (1976): Enabled the detainment of a suspect for an indefinite period of time without the need to consult a judge.
· Internal Security Act (1982): Permitted a magistrate, who believed the public peace was threatened, to prohibit the gathering of people for a period of up to 48 hours.
Obviously, this legislation, when coupled with the apartheid laws, made all the agencies and the vast majority of the agents of the South African criminal justice system complicit in the objectives of the apartheid regime. As an aside, the military was also involved in objectionable behavior and tactics directed at opponents of apartheid. While the military is not the focus of this chapter, it should be noted at the very least in passing.
During this period there was not only a significant increase in the size and powers granted to the police, but there was also a need to recruit more black police, in particular to work in the various townships that had developed on the borders of towns and cities and that had been expanding both in number and size of population. Harsh police tactics were inevitably employed, which led to protests and riots. This, in turn, sparked more police raids, in particular early morning raids that were designed to check on the status of the inhabitants’ pass documents. The staff assigned to jails and prisons were often more than willing to administer additional harsh treatment toward the inmate population, in particular those being held for trial or convicted of allegedly violating the rules associated with the apartheid agenda. Finally, the recruitment of attorneys as prosecutors and judges was also determined by their commitment to the apartheid agenda. While they may have pledged their service to uphold the law, it was a seriously corrupted version and application of that term that did not embrace the principals usually associated with the rule of law. As such, they were supporting a system associated with rule by law.
It was mentioned earlier that the administrations of Verwoerd and Vorster often employed harsh tactics to enforce the apartheid laws. The principal reason for this was blacks began to protest the government’s agenda and to resist its tactics. Three organizations played significant roles in these endeavors.
The first of these was the African National Congress (ANC), which was initially formed in 1912 as the South African Native National Congress, but changed its name in 1923. The purpose of the organization was to protest the unequal discriminatory treatment of blacks that was highlighted in the early years of the Union of South Africa by the Natives Land Act (1913) (explained earlier). The leaders of the Congress sought a dialogue with the British that emphasized equal treatment for all races. Unfortunately, London, while somewhat sympathetic to their plight, was unwilling to interfere, and indicated that the issues raised by the Congress needed to be resolved in South Africa.
By the mid-1940s, a younger generation of blacks were demanding a more proactive strategy on the part of the ANC. They were calling for the introduction of acts of civil disobedience at a time when the National Party commenced its apartheid agenda. The types of civil disobedience included strikes, boycotts, and refusing to cooperate with the implementation of the apartheid policies. It was also at this time that the leadership of the ANC admitted some of the young proponents of this strategy to their executive committee. Those selected were Nelson Mandela, Walter Sisulu, and Oliver Tambo. Each of these men was to play a leading role in the ANC and the eventual demise of apartheid.
The ANC would continue their nonviolent opposition to the apartheid regime into the 1950s. They supported the establishment of a Council of the Congress of the People, which would represent all the people in South Africa, and drew up a document that would espouse democratic ideals for the future of South Africa. This document was the Freedom Charter, which was adopted in June 1955. The preamble to the Charter stated:
We, the People of South Africa, declare for all our country and the world to know: that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people; that our people have been robbed of their birthright to land, liberty and peace by a form of government founded on injustice and inequality; that our country will never be prosperous or free until all our people live in brotherhood, enjoying equal rights and opportunities; that only a democratic state, based on the will of all the people, can secure to all their birthright without distinction of colour, race, sex or belief; And therefore, we, the people of South Africa, black and white together equals, Countrymen and brothers adopt this Freedom Charter; And we pledge ourselves to strive together, sparing neither strength nor courage, until the democratic changes here set out have been won.
The Charter then spelled out what it envisioned for a democratic South Africa. It pronounced that the people shall govern; all national groups shall have equal rights; the people shall share in the country’s wealth; the land shall be shared among those who work it; all shall be equal before the law; all shall enjoy human rights; there shall be work and security; the doors of learning and culture shall be opened; there shall be houses, security, and comfort; and there shall be peace and friendship.
Not all members of the ANC embraced all the objectives spelled out in the Charter, because some of the language was too socialist for their taste. Opposition to communism was not limited to members of the National Party, as a significant number of blacks also opposed it. Nevertheless, a number of the demands associated with racial equality that were cited in the Freedom Charter would appear years later in the new Constitution of South Africa. The Freedom Charter is revered as an important document in the black struggle within South Africa.
It should be noted that a number of white communists would become influential members in the ANC. When the Suppression of Communism Act (1950) was enacted, the ANC straightaway protested the legislation. The Act defined communism very broadly, that is, any effort “at bringing about any political, industrial, social, or economic change within the Union by the promotion of disturbance or disorder” was deemed communistic. The minister of justice was responsible for the identification of such organizations and for banning them. The minister was further authorized to identify members who could be banned from public office, public meetings, and prohibited from specific areas of South Africa. The ANC had good reason to object to this legislation, for it was frequently used as a justification to search people’s homes and businesses and to arrest them. On a number of occasions, leaders, such as Nelson Mandela, were subjected to such harassment based on the Suppression of Communism Act (1950). The use of this law was yet another factor that caused Western democracies to withhold support for the cause of the ANC during the 1950s, 1960s, and 1970s.
Another organization that identified with the ANC was the Congress of Democrats. It was a white radical antigovernment group established in 1952. They illustrated to black members that not all whites were supportive of the apartheid regime. The influence of whites in the ANC helped precipitate a split within the ANC. Some members felt that the ANC was at times not catering to the interests of blacks. Those who were disgruntled formed the Pan-Africanist Congress (PAC) in 1959. It was the PAC that organized the campaign against the pass laws in 1960. This, in turn, led to the demonstrations outside the Sharpeville police station and the subsequent deaths and assaults that were mentioned earlier. As a result of Sharpeville, work stoppages and demonstrations followed. The government of Prime Minister Verwoerd declared a state of emergency; arrested an estimated 18,000 people, including the leaders of the ANC and PAC; and banned both organizations.
The banning of the ANC led to a significant shift in its strategy and the development of Umkhonto we Sizwe, the Spear of the Nation. The Spear of the Nation would become the militant wing of the ANC. The PAC would also develop a militant wing, Poqo (Pure), which was limited to blacks. While the ANC’s wing tried to avoid taking human lives, the PAC wing was committed to a reign of terror that was directed not only at whites but also some blacks. The government was able to disrupt these early efforts at militancy by utilizing a heavily armed police force and various units from its military. John Vorster, the minister of justice, who was responsible for the government’s response following the Sharpeville massacre, also orchestrated the defeat of these militant wings. It was for these efforts that he was selected to succeed Verwoerd following the assassination. Moreover, both of these militant wings would regroup and eventually provide guerilla soldiers for the ANC and PAC.
Brief mention should also be made of two additional groups. With the ANC and PAC officially banned, and many of the leaders either imprisoned or in exile, a group of black university students formed the South African Students’ Organization (SASO) in 1969. The leader, Steve Biko, was a medical student who was drawn to and influenced by the black power movement in the United States. He maintained that the black protest organizations had relied too much on the leadership of white liberals. He favored blacks running their own organizations. He also criticized the use of violence by the ANC and PAC and emphasized a nonviolent strategy. Biko and other black consciousness leaders were subsequently arrested for their activities in 1977, and he was found murdered in his cell.
The other organization that should be acknowledged was the Progressive Federal Party, which was the small opposition political party in the South African Parliament. While the majority of whites had supported the National Party, approximately 20 percent did not. The Progressive Federal Party served to voice their objections to the policies of apartheid in the parliament.
Vorster’s tenure as prime minister would end in 1978. He was succeeded by P. W. Botha, who would serve as leader until 1989. During Botha’s tenure, a constitutional change was made in 1984 in which the office of prime minister was abolished and the office of president became the chief executive of the country, similar to that in the United States. Under Botha, some of the policies of apartheid began to change. For example, the rules associated with the Group Areas Act were not strictly enforced, and interracial marriages were legalized, but Botha continued to oppose granting blacks’ political rights. It was during his tenure that Nelson Mandela was removed from the prison on Robben Island and transferred to Pollsmoor Prison in 1982. The government was interested in beginning negotiations with the ANC, and they started to do this with Mandela. Mandela and Botha would meet for the first time in July 1989. Nothing was substantively accomplished, as it was more of a courtesy visit. Having suffered a stroke earlier, Botha resigned the presidency a month following that meeting.
Botha was succeeded by F. W. de Klerk. De Klerk remained leader of the National Party until 1997. He negotiated the laborious and painstaking transfer of power and the total dissolution of the apartheid regime. He would serve as president until 1994, at which time Nelson Mandela was sworn in as president of the new South Africa. Along with Thabo Mbeki, another future president, de Klerk served as a first deputy president to Mandela from 1994 to 1996.
There were many reasons that contributed to the negotiations between de Klerk and Mandela being characterized as laborious and painstaking. Obviously, the policies of the National Party over the course of some 40 years and the tactics employed by the leadership of that party did not lend itself to trust by Mandela and the ANC. For their part, the white apartheid regime was fearful of what the future held for them and all white people in the country. After all, the ANC had been banned as a terrorist organization, and some of its leaders arrested and convicted as terrorists by the courts. Some Afrikaners were either in a state of denial or suffered from a severe self-induced state of amnesia regarding apartheid’s terrorist agenda directed at all South Africans who were not white. The fear expressed by a number of whites, however, was an acknowledgement that blacks would be justified to strike at the white minority for the manner in which blacks, in particular, but also coloreds and Asians/Indians, had been treated under apartheid. Concern was also felt by some that South African whites might be subjected to some of the tactics employed in Zimbabwe by the government of Robert Mugabe, in particular the cases of harassment and even murder of white farmers and the eventual dispossession of their land.
While both of these perspectives were real and justified from the point of view of the two camps, what was particularly troubling at the time was the level of violence that was occurring in the country, particularly in the black townships. It might be useful to paint a picture of a typical township for this purpose. As mentioned earlier, the government began to develop many of these townships in the 1950s as a result of the forced removals called for by the Group Areas Act (1950). While the government was responsible for constructing some of the early small cinder-block residences that consisted of three or four very small rooms, these structures did not include indoor plumbing or electricity. As such, people had to rely on community toilets and communal taps for fresh water. Moreover, there were few paved roads. Over time, as more people from the rural areas moved to the urban areas seeking employment, and some Africans migrated over the South African border in search of employment, these townships grew considerably. The new arrivals frequently constructed shacks that were made of pieces of metal, wood, cardboard, and in more recent times, sheets of plastic.
In addition to the aforementioned conditions, the government established poorly equipped hospitals that provided inferior health care. The schools were also inferior to those provided for whites. The buildings were poorly equipped, teaching materials substandard, and many teachers were poorly trained. This contributed to the dropout rate among young people, in particular at the high school level. Moreover, the heavy-handed tactics of both black and white police in enforcing the apartheid laws only added to the tension and frustration of the township residents. Many black children feared white people in general based on their only contact with them, that is, the white police. While a number of whites were totally oblivious to these conditions, having never ventured into the townships, the residents of the townships, who could secure employment as maids or gardeners in the affluent white neighborhoods, were reminded daily of the gross inequities.
Throughout the 1960s and into the period of negotiating the transitional settlement, violence was a normal part of everyday life. This included seeing people murdered in the townships. The horrible living conditions helped foster this frustration, along with the high levels of unemployment, which in turn led to people having nothing to eat. The level of malnutrition among children was particularly noticeable. Some people would do almost anything to survive. Such conditions lent themselves to the emergence of tsotsis (gangs). As is often the case even today, these gangs preyed on other residents of the townships. A frequent tactic was to assault and rob people of their money on pay day. This situation helped to enhance varying degrees of suspicion and distrust among the residents. It is worth interjecting at this time that many of the homeland groups retained a strong belief in superstitions, which included witchcraft. Some people attributed their bad luck, illness, and unemployment to witchcraft. In addition to the distrust directed at black police officers, there were also levels of apprehension toward people that were labeled impimpi (informers) to the police and other white authorities. It was not uncommon for people accused of witchcraft or of being informers to be necklaced. Necklacing involved taking a tire that had been soaked in gasoline, placing it around the accused’s shoulders, and then setting the tire on fire.
Throughout the 1970s and 1980s, students within the townships frequently protested the various policies of apartheid. At times, the schools were closed for extended periods of time. Some students never returned to school, which increased the problem of illiteracy among blacks, which remains a problem to this day for many black South Africans who find it difficult to secure employment. Some of these dropout students sought employment; others joined the ANC abroad and trained as guerrillas for future actions against the apartheid regime; some left school because they were pregnant; and others elected to join radical gangs that were formed to destroy the government structure in the townships. This last group spent a good deal of their time recruiting other students to participate in their protest efforts, which frequently led to violent clashes with the heavily armed police. Failure to comply could lead to the student being necklaced. Those members of the Zulu group were frequently at cross-purposes with these radical youth gangs. As such, they often attacked these youths with their spears, clubs, and machetes; they would also attack students at schools, because they considered schools the breeding grounds for the more radical youth gangs (Mathabane, 1986; Mathabane and Mathabane, 2000).
Brief mention should also be made of the Inkatha Freedom Party and their position, which contributed to delays in negotiating a transitional settlement. Inkatha was led by Mangosuthu Gatsha Buthelezi, the chief minister of the KwaZulu homeland. It was a conservative movement that supported Zulu cultural patriarchal traditions. Their policy was to continue to work within the present system in their opposition to apartheid. Members of Inkatha frequently clashed violently with members of the ANC in the KwaZulu homeland and in various townships. It would be learned later that a group of senior officials within the South African police had trained Inkatha squads and provided them with weapons to create violence in the townships and to disrupt efforts to secure an accord between the government and the ANC. Finally, it should be noted that the South African Institute of Race Relations indicated that death as a result of political violence claimed 2,672 lives in 1991, 3,347 in 1992, and 3,706 in 1993 (South African Institute of Race Relations—Annual Reports, 1991–1992 and 1993–1994).
When South Africa came out of this disturbing phase in its history and embraced the goal of establishing a democratic system of government that was based on principles associated with the rule of law and that was opened to all South Africans, irrespective of the color of their skin, a good deal of work was required to change the hearts and minds of all the people of the country. The most difficult area of government that needed reform was the criminal justice system. It appeared to be an impossible task in light of the institutional history of these justice agencies under apartheid. The greatest issue confronting the various components of that system was the need to convince the citizens of the country that they were capable of dramatic change and that they could be trusted to serve and protect the rights of all the citizens of the country.
South Africa and Russia are two countries covered in this book that lend themselves to some interesting comparisons and future monitoring. Russia developed its socialist legal system throughout the twentieth century to advance the mission of the Communist Party, whereas South Africa’s legal system was subverted during the apartheid era to establish and enhance the policies of the National Party. Both relied heavily on agents of their criminal justice systems to carry out the respective agendas of the communist and apartheid regimes. While Russia abandoned communism late in 1991, South Africa officially renounced apartheid in 1994. What makes these two countries ideal for comparison is that both serve as illustrations of nation states that have proclaimed a goal of transforming their method of governance to a democratic format and in varying degrees have implemented strategies to achieve this objective.
In the South African context, reference has already been made to the lengthy discussions and negotiations carried out between Nelson Mandela on behalf of the ANC and F.W. de Klerk for the government to reach a settlement that would move the country forward during the initial post-apartheid period and that would work toward establishing a peaceful and unified country for all the people of South Africa. The negotiations were carried out during the early 1990s during a period of unrest. A good deal of violence occurred between the ANC and the Inkata Freedom Party. There were allegations of police brutality in the townships, and evidence was uncovered that death squads operated within the security services. In 1990, Mandela announced the end to the ANC’s armed struggle against the government. President de Klerk continued to lift apartheid restrictions and ordered the police to cease activities that were designed to enhance the politics of apartheid. In 1991, he also appointed Justice Richard Goldstone to chair the Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation (often referred to as the Goldstone Commission). The Commission’s mandate was to investigate acts of violence or intimidation after July 17, 1991, the date when the Commission was established, up to the 1994 general election. In light of these efforts there were calls by some conservative South Africans for de Klerk to resign from the presidency.
In September 1991, the National Peace Accord was signed by representatives of the national and homeland governments along with all major political parties and other organizations. Unfortunately, violence would continue throughout 1992. Nevertheless, negotiations continued and resulted in a call for an interim coalition government and the establishment of an all-party congress that would be responsible for developing principles on which a new constitution would be based. By November 1993, a draft interim constitution was approved that called for a five-year transitional government. Among the features that were hammered out in this interim constitution included one sovereign state with a sovereign constitution, a set of principles and basic values, a bill of rights, a constitutional court, an electoral system based on proportional representation, a government of national unity, a constitutional assembly to finalize the constitution, the establishment of nine provinces with both executive and legislative functions, a system of municipal government, and the recognition of 11 official languages (De Klerk, 2000; Mandela, 1995; Sampson, 1999; Sparks, 1997b).
An important and somewhat overlooked feature of the negotiated settlement and transition government was the recognition on the part of the ANC that they did not have nearly enough qualified people to fill many key civil service positions. In addition, Nelson Mandela did not want to alienate segments of the white population at a time when he was attempting to establish a government of national unity. As such, part of the negotiated settlement was that civil servants, who for the most part were Afrikaners, would retain their jobs for at least five years. Moreover, it was noted that even when mid-level management vacancies did occur during this period, they were often filled by promoting whites within their respective departments. This decision was helpful and contributed to the orderly transition of governmental power. Efforts to implement a more proactive affirmative action program did not take place until Thabo Mbeki assumed the presidency in 1999.
Unfortunately, some people, whites in particular, with the technological training and organizational skills that South Africa so badly needs, were leaving the country. This was having an adverse impact on the professional class. The reasons offered are that they saw a bleak future for their own employment prospects and advancement and were very concerned about the future opportunities for their children. Moreover, some were emigrating because of the crime problem.
In April 1994, national elections were held. A total of seven political parties won seats in the National Assembly. The African National Congress won 62.6 percent of the vote, the National Party garnered 20.4 percent, and the Inkata Freedom Party secured 10.5 percent. Nelson Mandela was unanimously elected president by the National Assembly. Two deputy presidents were selected: Thabo Mbeki, an ANC leader and future president, and F. W. de Klerk, the former president.
The creation of a new South Africa was significant—a remarkable feat in light of the country’s brutal white supremacist past and the significant violent unrest that was occurring during the negotiations. Some people were fearful that the country might become engulfed in a civil war. There were many skeptics who did not think an agreement could be reached on a new system of government, let alone the holding of a democratic election that would be certified as both free and fair by outside observers. The mantra for much of the political and private-sector leadership in the country and for all people of goodwill was ubuntu. In the preface to the Promotion of National Unity and Reconciliation Act (1995), it states “that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization.” Ubuntu means humaneness. It is a hopeful philosophy of life that has deep roots in the culture of the native people. It emphasizes compassion and respect for humanity and solidarity as a group.
Truth and Reconciliation Commission
The Government of National Unity established the Truth and Reconciliation Commission (TRC) when it assented to the Promotion of National Unity and Reconciliation Act (1995). The TRC was set up to address gross violations of human rights that occurred between 1960 and 1994. Thus, the TRC’s mandate was not limited to abuses perpetrated only by those in support of the apartheid government, but it also included offenses committed on behalf of the struggle against apartheid. The term “gross violations of human rights” was defined as “the violation of human rights through (a) the killing, abduction, torture, or severe ill-treatment of any person; or (b) any attempt, conspiracy, incitement, instigation, command, or procurement to commit an act referred to in paragraph (a).” These terms are further defined and found in appendix 1 of volume 1 of the TRC’s Report.
Three committees were created to carry out the work of the TRC. The Human Rights Violations Committee was authorized to investigate human rights abuses. As such, they identified victims, considered the extent of the harm caused, and determined whether the abuse was the result of planning on the part of the state, an organization, a group, or an individual. The Reparation and Rehabilitation Committee was tasked with the responsibility to provide victim support for those victims of human rights violations that had been identified by the Human Rights Violations Committee. The specific goal of the Reparation and Rehabilitation Committee was to assist the efforts to restore dignity to the victim and to develop policies and recommendations on rehabilitation for the victims and healing for the greater community. Moreover, a fund was established to pay reparations to victims. The Amnesty Committee was responsible for considering the applications for amnesty. Applicants were people who, either by acts of commission or omission, were involved in incidents that had a political objective between March 1, 1960 and May 11, 1994. The granting of amnesty meant that the perpetrator was free from prosecution for the act or acts that the person freely confessed as a participant before the committee.
While a number of South Africans supported the efforts of the TRC, there were people who opposed the Commission and its work. In reference to public opinion, more blacks than whites considered the TRC a good thing. More blacks also viewed the TRC as fair, while more whites found it to be biased. Although the perceived success of the TRC was mixed, it was noted by most as an attempt to facilitate the healing process and the call to unity for all South Africans (see Fullard and Rousseai in Daniel, Habib, and Southall, 2003; Krog, 1999; Sachs, 2009; Theissen, 1999; Tutu, 1999).
The Constitution
The Constitution of the Republic of South Africa (1996) was assented to in December 1996. The interim constitution would be replaced officially on February 4, 1997. The new Constitution of the new South Africa consists of 14 chapters and 243 sections, and it reflects the philosophy of ubuntu from the outset. For example, the Preamble proclaims:
We, the people of South Africa,
Recognize the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to—
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people. God bless South Africa.
Chapter 1 of the Constitution is devoted to founding principles that are reflective of ubuntu. The first three are particularly telling in light of the country’s history. To illustrate, section 1 states:
The Republic of South Africa is one, sovereign, democratic state founded on the following values:
a. Human dignity, the achievement of equality and the advancement of human rights and freedoms.
b. Non-racialism and non-sexism.
c. Supremacy of the constitution and the rule of law.
d. Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.
Section 2 indicates that the “Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” And section 3 proclaims in part: “(1) There is a common South African citizenship. (2) All citizens are—(a) equally entitled to the rights, privileges and benefits of citizenship; and (b) equally subject to the duties and responsibilities of citizenship.” Both the Preamble and the founding principles of the Constitution can also be traced back to the ideas espoused in the Freedom Charter of 1955.
Chapter 2 of the Constitution is devoted to the Bill of Rights. This is a lengthy chapter listing a number of rights that not only reflect the country’s past but also illustrate the time period in which the document was enacted. Clearly, since the end of World War II, a number of rights that are often associated with human rights have increased significantly. Some of these rights have been proclaimed in law and clarified in court decisions, while others are aspirations that the country is seeking to fulfill.
Section 7 states: “(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfill the rights in the Bill of Rights.” Section 8 points out that “[the] Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.” The Constitution lists and elaborates on a series of rights found in the Bill of Rights. These include equality before the law; acknowledgement of human dignity; the right to life; freedom and security of the person; prohibition of slavery, servitude, and forced labor; right to privacy; freedom of religion, belief, and opinion; freedom of expression; the right peacefully to assemble, demonstrate, picket, and petition; freedom of association; freedom of political rights; prohibition to deprive one of citizenship; freedom of movement and residence; freedom of trade, occupation, and profession; the right to fair labor practices; rights and responsibilities to protect the environment; the right to property; the right to adequate housing; the right of access to health care, food, water, and social security; several rights associated with the care of children that are in a child’s best interests; the right to basic education, including adult basic education; the right to use the language of their choice; the right of people to enjoy the cultural, religious, and linguistic community of which they belong; the right of access to information; the right to just administrative action; the right of access to courts; and certain rights associated with the arrest and detention of accused persons. More will be said of this last right in the section of the chapter devoted to the law.
Scholars and others have been fond of grouping the notion of rights into three categories. The first category is associated with civil and political rights and is associated with the notion of the rights of a free citizen. The second category concerns entitlement rights, which frequently deal with social and economic issues, such as education, health, housing, and welfare. Finally, the third category is often more future- and group-oriented and concerned with such issues as the environment and peace. The difficulty confronting many countries, like South Africa, that include in their constitutions the second and third categories of rights is the extent to which such rights can be enforced. This usually places courts in a difficult position because they do not have control over the budget of the government that determines spending priorities that impact funding directed at such rights as education, health, housing, and welfare. As such, some consider many of the rights that fall into categories two and three as aspirational rights (Kende, 2009; Sachs, 2009).
The South African Bill of Rights does acknowledge that limitations may be placed on the aforementioned rights. Section 36 states “rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable. . . .” Constitutional Court decisions have clearly acknowledged that limitations may also be impacted by the availability of resources. It should also be noted that section 37 addresses the issue of states of emergency. It is in that context that the Constitution contains a list of nonderogable rights that cannot be restricted, which include the right to life, the right to dignity, and the right to be free from discrimination associated with race, color, ethnic or social origin, sex, religion, or language.
Parliament
Parliament consists of two houses: the National Assembly and the National Council of Provinces, and they are responsible for legislative matters associated with the national government. Section 44 indicates that when exercising its legislative authority, parliament “is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.” Parliament is located in the city of Cape Town.
National Assembly
According to the Constitution, the National Assembly must consist of at least 350 but no more than 400 members. It is presently composed of 400. Criteria for eligibility to serve in the Assembly are South African citizenship and having achieved the voting age of 18. The National Assembly is elected for a term of five years. All elections are determined by proportional representation. This is achieved by having each political party rank order their candidates for the National Assembly. Voters then cast their vote for a political party. The percentage of votes cast for a party determines the number of members that party will have in the National Assembly. The National Assembly has four principal responsibilities: to serve as a public forum to discuss issues, to pass legislation, to select the President of the Republic of South Africa, and to provide oversight of the executive.
National Council of Provinces
South Africa consists of nine provinces. The National Council of Provinces is composed of a delegation from each province, and each delegation consists of 10 members with the premier of the province heading the delegation. Thus, the National Council consists of 90 members. Proportional representation is also employed to determine the composition of the delegation from a province; that is, membership is based on the percentage of seats held by a political party in the provincial legislature. The National Council considers and votes on all legislation before the Parliament. They may also introduce legislation falling in specific areas identified in schedule 4 of the Constitution, which refers to functional areas of concurrent national and provincial legislative competence.
President
The president is the head of state and leader of the national executive, which consists of the president, deputy president, and the cabinet. At the initial meeting of a newly elected National Assembly, members must elect a person from among its members to serve as president. The actual candidates for the office are the leaders of the various political parties represented in the Assembly. The holder of the office of president is limited to not more than two terms. The executive branch of government is located in the city of Pretoria.
In addition to the duties of promoting the unity of the nation and upholding and defending the Constitution, the president has several specific responsibilities. Among the most significant are: selecting a cabinet, promoting a legislative agenda that reflects the administration’s policy objectives, signing legislative bills into law, serving as commander in chief of the military, summoning a parliament or individual houses of parliament for an extraordinary session, and sending a bill back to the National Assembly with questions regarding its constitutionality. On this last responsibility, it is interesting to note, especially from an American perspective, that the president may seek the opinion of the Constitutional Court on the constitutionality of a bill that is or has been considered in parliament.
The deputy president assists the president in the executive functions of the office. The person is selected by the president from members of the National Assembly. The deputy president is also a member of the president’s cabinet.
The Cabinet
It is the responsibility of the president to select members from the National Assembly to serve as members of the cabinet. The president, through the cabinet, is responsible for developing and implementing national policy, preparing and initiating legislation in parliament, and coordinating and managing the various departments of the national government. The president selects one of the cabinet members to serve as the leader of the government in the National Assembly.
Presently, the cabinet consists of 34 departments. Some areas of focus are common in any national administration, such as international relations, defense, justice, finance, health, and agriculture. In addition to justice, the police and correctional services are each represented in the cabinet as distinct departments. Some departments are designed in part to rectify past inequities and to establish policies committed to addressing those issues, such as arts and culture, basic education, higher education, human settlements, rural development, and social development. The cabinet also includes a department for women, youths, children, and people with disabilities.
Political Parties
As a result of the 2014 election, there are 13 political parties represented in the National Assembly. They are listed here in the order of the number of seats secured, which is based on the percentage of votes cast for the party: African National Congress (249), Democratic Alliance (89), Economic Freedom Fighters (25), Inkatha Freedom Party (10), National Freedom Party (6), United Democratic Movement (4), Freedom Front Plus (4), Congress of the People (3), African Christian Democratic Party (3), African Independent Congress (3), AGANG SA (2), Pan Africanist Congress (1), and African People’s Convention (1). It is important to note that nine of the parties only have a combined total of 27 seats in the Assembly of 400.
The most serious concern among students of South African politics in general and democratic government in particular is that there is only a single dominant political party in the country. Unlike many democratic systems of governance, there is presently no political party in opposition that has a realistic chance of assuming the mantle of leadership in the government. Most people view a strong party in opposition with the potential of assuming the leadership as a healthy approach to democratic governance. The fear is that a party in power for an extended period may become arrogant and abusive of its power and complacent in its achievements at the expense of issues that need attention. Such a party may lose touch with the needs and aspirations of the people that put them in power. Of course, there are examples of political parties that were in power for extended periods of time that did not appear to threaten the democratic system of governance. To illustrate, the Social Democratic Party of Sweden was in power for a considerable period of time during the twentieth century, and the Liberal Democratic Party of Japan has often been the majority party since the end of World War II. The principal political parties of South Africa are identified briefly below.
African National Congress
Since the establishment of the new South Africa, this has been the largest of the political parties in the country. It has won the majority of seats in each of the national elections in 1994, 1999, 2004, 2009, and 2014. As was mentioned earlier, the ANC was founded in 1912 as the South African Native National Congress (SANNC) and changed its name to the ANC in 1923. While the ANC has always been an advocate for black South Africans, it encouraged all races to join in its efforts to oppose apartheid, and a number of coloreds, whites, and Asians/Indians joined. It was declared an illegal organization in 1960, and in the following year, the ANC established an armed wing of the organization, the Spear of the Nation, to fight a guerrilla war against the apartheid regime. This would lead many of its leaders to be branded terrorists.
As such, the history of the ANC was one of an organization in opposition and at times a revolutionary movement. It was not a true political party, because for the first 80 odd years of its existence it was prevented from participating in the national political process. Moreover, the previous 30 years had been spent in political exile. Some questioned whether the ANC would be able to transform itself from a national liberation movement into a political party that could function within the context of an electoral process. Nevertheless, it became the country’s dominant political party in the 1994 election and continues to hold that position.
The Freedom Charter that was mentioned earlier and created in 1955 espoused such objectives as establishing a country in which all people would have equal rights and opportunities and enjoy the protection of various human rights. The Freedom Charter statement remains the ANC’s guiding policy document. Since assuming political office, two of the principal goals of the ANC have been to expand the economy and to reduce poverty. This has led them to work closely with the business community to improve the economic climate in the country. While a number of good people within the ANC are committed to helping the poor, there has been a concern unfortunately both within the ANC and from its critics that too many ANC insiders have focused on their own self-enrichment. No doubt, this proves that the ANC is no longer a revolutionary movement but a mainstream political party.
Democratic Alliance
Democratic Alliance is the latest iteration of a liberal centralist group that favors free market principles. It is the heir to the Progressive Federal Party and then the Democratic Party that supported the abolition of apartheid and sought the establishment of a democratic state that protected the human rights of all. The Democratic Alliance was created in 2000. It favors a free market economy rather than the nationalization of industries. Since the establishment of the new South Africa, it has been a consistently vigorous opposition party that has been loyal to and supportive of the present constitutional system of government. Nevertheless, it has been highly critical of the manner in which the ANC has handled such issues as crime, education, health, and the economy.
Economic Freedom Fighters
Some people within the ANC have been frustrated with the government’s inability to address, or lack of significant progress in addressing, a number of social and economic issues that have confronted the black community both before and since the end of apartheid. As such, they have broken away and formed new political parties. The Economic Freedom Fighters (EFF), formed in 2013, is the latest iteration of that movement. Members of this party view themselves as revolutionaries for the workers. The founder is Julius Malema, who was the head of the ANC’s Youth League until he was expelled from the party in 2012. Characterized for his revolutionary charisma, Malema’s long-standing position is reflected in the platform of the EFF, that is, to nationalize the mines and redistribute white farmland without any compensation.
Inkatha Freedom Party
This is a Zulu-based political party and has been a rival to the ANC in terms of attracting the votes of the black community. It was established in 1922 and played a role in creating and participating in the National Unity government of 1994. It has focused its goals on improving the economy by encouraging more investment in the country and enhancing a competitive business environment and introducing more cost-effective approaches to government, especially in the areas of fiscal management and the delivery of social services.
Freedom Front Plus/Vryheidsfront
While the Freedom Front is not considered a principal party in the grand scheme of South African politics, in light of the country’s past, it deserves brief mention. It is a right-wing Afrikaner political party that was created in 1993. It tends to receive the support of various farmers organizations. The goal appears to be that of an advocate for the retention of Afrikaner cultural traditions.
Administration
The administration of South Africa’s governmental system is carried out at three levels: national, provincial, and municipal. The national administration is carried out by government departments and state institutions that are designed to support the democratic principles spelled out in the Constitution. Several of these commissions will be identified shortly, and some will be the focus of attention in this chapter. Of particular interest are the departments and commissions that are associated with the criminal justice system.
South Africa is divided into nine provinces: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, and Western Cape. Each province has a legislature that is composed of between 30 and 90 members who have been elected in a proportional election. Like the members of the National Assembly, members of a provincial legislature serve a five-year term. The chief executive of a province is the premier. The person is elected from among the members of the provincial legislature. The premier is also the leader of the 10-person delegation from the province that sits in the National Council of Provinces, the second house of the national parliament.
Local government is carried out at the municipal level. The rules associated with the election of members to a municipal council and the legislative and executive authority of the council tend to mirror that at the provincial level. Municipalities may elect to be a free-standing entity or choose to establish a system of governance that includes more than one municipality.
State Institutions Supporting Constitutional Democracy
The executive, legislature, and judiciary have a significant role to play in supporting the objectives spelled out in the preamble to the Constitution and to the values outlined in the founding provisions of the first section of the Constitution. Both the preamble and the founding principles are cited earlier. Of course, a good deal of attention will focus on the role of the judiciary later, which has a subsection devoted to it. The framers of the new South African constitution elected to establish several entities that are designed to address, somewhat on a daily basis, many of the issues cited in the founding principles. While they are independent organizations, they are ultimately accountable to the National Assembly. This is reflected in the annual reports that each issues to the Assembly. Moreover, it is the president, on the recommendation of the National Assembly, who appoints the Public Protector and members to the various commissions.
The Public Protector
According to section 182 of the Constitution, the Public Protector has the authority “(a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; (b) to report on that conduct; and (c) to take appropriate action.” It should be noted, however, that the Protector may not investigate a decision handed down by a court. Among the types of issues brought to the attention of the office are allegations of ethics code violations by politicians, conflicts of interest, unprofessional and improper conduct of a civil servant, noncompliance with national legislation at the provincial level, complaints about pension benefits, complaints about pensioners’ housing subsidy, and undue delays in processing criminal appeals of behalf of prisoners. Finally, it should be noted that a person selected to serve as the Public Protector is limited to a single seven-year appointment.
South African Human Rights Commission
This commission is responsible for the promotion, protection, and monitoring of human rights in the country. It has the authority to investigate and to report on human rights matters, to seek resolutions of cases in which human rights have been violated, and to carry out research and education related to its mandate. Section 184 of the Constitution requires various departments and agencies of government to provide the commission with a report that outlines the steps taken to achieve the rights espoused in the Bill of Rights that deal with housing, health care, food, water, social security, education, and the environment. Commissioners can serve on either a full-time or part-time basis.
Commission for the Promotion and Protection of the Rights of Cultural, Religious, and Linguistic Communities
This commission is responsible for the promotion of cultural diversity, which includes respecting the rich cultural, religious, and linguistic communities of the country. In the event cases of discrimination on such matters are brought to their attention, they turn the matter over to the Human Rights Commission, which has the authority to investigate such matters. The Commission is comprised of at least 11 but not more than 17 commissioners.
Commission for Gender Equality
Discrimination based on gender has been a significant issue in many countries since its emergence as a recognized problem in the 1960s and 1970s. What makes it particularly troubling in the South African context is that a good deal of the inequality or discrimination (as that term is used in the twenty-first-century context) has its origins in the ancient patriarchal native cultures. The commission is tasked to protect gender equality and to advance the same. It has the authority to monitor and investigate issues associated with gender inequality. It also conducts research, educates, lobbies, and reports on matters associated with gender equality. There are approximately 10 members on the commission.
Electoral Commission
This commission is responsible for managing elections at the national, provincial, and municipal levels and to ensure that they are conducted in a free and fair manner. This includes declaring the results of elections. This commission is composed of five commissioners.
Independent Communications Authority
This organization is responsible for ensuring that all citizens have access to a range of communication services. They license broadcasters, signal distributors, providers of telecommunication services, and postal services. They also handle complaints from various subscribers. The authority is administered and managed by a council that includes a chair and eight councilors and a chief executive officer.
Concerns
The ANC has accomplished a number of things since it became the majority party in the new South African government. Of particular note is that from 1994 to 2007, they had 2.6 million homes built. The number of homes with electricity has doubled to 8.8 million and more than 87 percent have access to clean running water (Russell, 2010). These are important accomplishments that address some of the most basic needs of the poor that were ignored by the apartheid regime. Nevertheless, there are a number of concerns, several of which were high on the ANC’s agenda when they earned the right to administer the government. Brief mention is made of four of them here, as they impact society in general and the criminal justice system in particular.
Education
The 26,000 public schools have had a good deal of money invested in them since 1994; unfortunately, they remain substandard. There are a host of factors that contribute to this dilemma. For example, the government acknowledges that there has been a significant level of incompetence at managing the resources provided to schools. There is a high level of absenteeism among the staff. Approximately 58 percent of the teachers under the age of 40 have died from AIDS. Roughly 33 percent of the students fail their twelfth-grade final exams, and only 40 percent finish grade 12. It is also estimated that 300,000 primary school students are HIV-positive from birth and will have health problems that will adversely impact their ability to learn (see Marais in Daniel, Naidoo, Pillay, and Southall, 2010; Russell, 2010).
Unemployment
While there are good jobs available in South Africa, there is a shortage of qualified people to fill them. The government claims that the unemployment rate is roughly 24 percent, but many people claim that it is much higher at between 30 and 40 percent. Moreover, 73 percent of people under the age of 35 are unemployed. It is further estimated that as many as 50 percent of young people may never hold a job in their lifetime, because they lack any skills needed in the workplace. Originally, this problem was a result of the poor educational system provided for blacks during the apartheid era and the frequent closing of schools in the townships during the 1970s and 1980s when students were protesting the actions of the apartheid regime. The other part of the problem was mentioned earlier, that is, the substandard quality of the present educational system (Russell, 2010).
Unfortunately, the substandard educational system has continued. The Department of Basic Education reported that in 2013, 60 percent of young people left school with no qualification beyond grade 9. Of the students in grades 10 to 12, 9 percent had repeated a grade at least three times. The Annual National Assessment for 2013 indicated that 49 percent of grade 5 students performed satisfactorily in language skills, but only 33 percent did so in math, while in grade 9, the performance was 33 percent in language skills and 14 percent in math.
South African newspapers are frequently calling for a radical change not only in the educational system for children but also in teacher education. As alluded to earlier, education is associated with securing employment. Presently, the unemployment rate for people under 25 years of age is 51.5 percent, with males at 47.1 percent and females at 56.9 percent. Only Greece and Spain have a higher level of youth unemployment.
AIDS
When the ANC assumed responsibility for administering the government, they made a pledge to the people that they would take seriously every person’s right to health care. Admittedly, the healthcare system was confronted with many challenges, because of the neglect and poor quality of service provided to the majority of South Africans during the apartheid era. It would take time to correct several deficiencies. Nevertheless, South Africa has been confronted with an AIDS epidemic for three decades. Within the government, officials were in a state of bizarre denial at the level of the problem and the efficacy of antiretrovirals. They essentially refused to accept for a considerable period of time the science on AIDS. While they have reversed their earlier position on AIDS, the damage has already been done. The country will suffer the effects for years to come. To illustrate, it is estimated that 5.6 million people in South Africa are living with AIDS, which is more than any other country. Some have estimated that approximately 310,000 died of AIDS in 2009.
The significant percent of students and teachers with HIV/AIDS was noted earlier. This has had a serious impact, especially on South African’s black professional class. This also includes all aspects of the criminal justice system: police, judicial services, and correctional employees. This epidemic has impacted in particular the age groups ranging from the late teens to the late forties. The estimate is that 17.8 percent of that age group is affected. Moreover, the failure to address this problem in an appropriate manner has led to a further increase in the number of orphans and the pressing need for more caregivers (see Marais in Daniel, Naidoo, Pillay, and Southall, 2010; Mbali in Daniel, Habib, and Southall, 2003; Quinlan and Willan in Daniel, Southall, and Lutchman, 2005; Russell, 2010).
Corruption
The apartheid state was a form of corruption on a grand scale in that it significantly hindered the role of accountability of parliament, courts, and the media. In the present context, corruption is associated with clearly illegal acts, such as fraud and bribery, to unethical actions, such as patronage, mismanagement, and abuse of power. The perceptions of South Africa are that there is a lot of corruption. Public servants most associated with corruption are the police, particularly traffic officers. The South African media have noted that politicians and government officials, especially at the local and provincial level, are using their positions for personal gain.
The ANC has been accused of not doing enough to police its own, that the quality of local and provincial officials is too low, and that there is an attitude of entitlement now that they are in power. The arms procurement scandal, which involved then deputy president Jacob Zuma, along with other allegations of corruption, have continued to follow Zuma after he assumed the presidency. Since assuming the presidency, a cloud of charges of corruption continues to follow Zuma. Such criticisms have led to claims of racism and that the critics want the ANC to fail. It has been reported that the government has attempted to introduce an anti-corruption strategy. Unfortunately, financial resources are not forthcoming to implement the strategy. Once again, the government is attempting to address a host of issues, many of which are the result of the apartheid regime, but with limited resources. In a 2003 United Nations survey of 1,000 businesses, 62 percent indicated that bribery was becoming a problem and that 7 percent stated that they had paid a bribe. Many businesses (64 percent) stated that fraud and corruption were hindering business.
In the most recent corruption perceptions index of 2013, by Transparency International, South Africa was ranked 72 out of 175 countries with a score of 42. (The highest scores of 90 to 100 indicate very clean versus the lowest scores of 00 to 09 indicating highly corrupt.) Of the countries covered in this book, the rankings and scores were as follows: United Kingdom 14 (76), Japan 18 (74), France 22 (71), Turkey 53 (50), Saudi Arabia 63 (46), China 80 (40), Russia 127 (28), and Iran 144 (25). The United States was ranked 19 (73) (see Sole in Daniel, Southall and Lutchman, 2005; Transparency International, 2013). Thus, only China, Russia, and Iran had a lower score than South Africa.
During the apartheid era there was not only a significant increase in the size and powers granted to the police, but there was also a need to recruit more black police to work in the various townships that had developed on the borders of towns and cities and that had been expanding both in number and size of population. The police were the principal agency of government responsible for enforcing the various draconian laws that were enacted during apartheid. Harsh police tactics were inevitably employed, which led to protests and riots. This, in turn, sparked more police raids, in particular early morning raids that were designed to check on the status of the inhabitants’ pass documents. Pass law violators could be and were arrested and jailed for not having their passbook up to date. It will be recalled that the Group Areas Act (1950) led to the forced removal of people from their homes, and it was the heavily armed police that were called upon to carry out the removals. Of all the agencies of the apartheid criminal justice system, the police were undoubtedly hated the most, because they were the most visible organization and were frequently encountered by a majority of black South Africans. Without this type of police force it is unlikely that the apartheid regime could have continued in power for as long as it did.
The new government of South Africa would have its work cut out for it in changing the hearts and minds of not only the majority of citizens of the country that had been victimized by the police in the past, but also in changing the law enforcement and order maintenance culture within the police establishment. This could not be accomplished in a single generation, for the wounds were far too deep. The old South African Police were clearly guilty of a policy of abuse and torture that was primarily directed at black South Africans. At times, black police officers in the old police force were also guilty of abuse of their own people.
While these old wounds would continue to fester, some new wounds would appear, but this time white officers were the victims, with the establishment of affirmative action policies. The Constitution of the Republic of South Africa in chapter 2 , section 9, devoted to the Bill of Rights, states: “To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.” This led to the creation of policies designed to promote blacks over whites within the police. While many people, including white officers, recognized the need for affirmative action within the police, the central problem focused on the pool of candidates available for preferential treatment. Some of these officers could neither read nor write, and those that had transferred from a homeland police organization were often deemed incompetent by white officers. Nevertheless, a significant effort was called for to transform the police in light of the fear of some that the country during this period of transition was on the brink of a possible civil war.
Organization and Administration of the Police Service
When discussions for the new South Africa centered on governance issues associated with the police, it was decided that there would be a single national police agency. As a result, the homeland police departments that were poorly funded and the subject of a good deal of criticism from the communities they served were merged with the old national South African Police organization. What developed from this change was the South African Police Service. It consists of approximately 155,500 police officers and more than 42,400 civilian employees. A description of the organization of the South African police is found in Figure 4.2 .
In the new South Africa, two pieces of legislation control the police: the Constitution of the Republic of South Africa, specifically chapter 11, and the South African Police Service Act (1995), which has been amended from time to time. Chapter 11 of the constitution is devoted to the security services, which consist of the military, police, and intelligence services. Among the governing principles found in section 198 are: “national security must be pursued in compliance with the law, including international law. . . [and] subject to the authority of Parliament and the national executive.” Each of the security services is to be organized, managed, and regulated by national legislation. Section 199 states, in part: “to give effect to the principles of transparency and accountability, multi-party parliamentary committees must have oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament.” Thus, the goal is to assure a sharing of responsibility for these important agencies of government. Both the executive and legislative branches have a role to play. Of course the judiciary, while not mentioned here, would also play a role in the oversight, accountability, and transparency of the security services.
Figure 4.2 Organization of the South African Police Service
As mentioned earlier, the change to a new democratic style of government for South Africa also led to the need to transform a number of agencies of government. The criminal justice system was in particular need of reform. With reference to the police, one initial change, which might appear cosmetic for some, was to change the name of the national police organization. During the apartheid era, it was known as the South African Police. In the new South Africa, it will be known as the South African Police Service. The addition of the word service was designed to reflect the new purpose and policies of the organization.
Admittedly, many of the same people who worked in the old organization remained employed in the new one. While some felt that these veteran officers could not be trusted in light of their past behavior in the old organization, others took the view that experienced officers in controlling civil unrest and dealing with crime, which was on the rise, were needed at this time in the country’s period of transition. While it is well known that it is difficult to change the culture of any organization, police agencies in particular, a concerted effort was made to orient current and new members of the police to concepts associated with human rights in the policing context. For example, there was a need to establish a new climate within the police organization that introduced a different vision and a new basic orientation to the job from what had previously been expected of the line officers, such as acknowledging that all people have fundamental rights, respecting the needs of the community with regard to protection and security in particular, offering a professional quality service in which the police were accountable to the community, and being proactive and impartial in the performance of their job.
The basic purpose of the South African Police Service is spelled out in section 205: “to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.” A national policing policy is established after consulting with the provinces in order to take into account their particular needs. Provinces are authorized by the constitution under section 206: to monitor the police and oversee their effectiveness and efficiency and to promote positive relations between the police and the community. This led to the establishment of community–police forums that were designed to promote local accountability of the police but also cooperation from the community through consultation efforts. Of course, a good deal of discussion centered on the development of community policing. In order to introduce community policing, however, there was the initial need to establish trust among the participants. The level of distrust on both sides has been a difficult barrier to overcome.
The Department of Police
The Department of Police is a cabinet-level unit in the South African government. The minister of police is appointed by the president and is a member of the National Assembly. How the police are organized and managed is largely controlled by the South African Police Service Act (1995) and subsequent amendments to that legislation. It should be noted that under the apartheid regime the police were under the Ministry of Law and Order. After 1994 and the transition to a democratic system of governance, the police were housed in the Department of Safety and Security. The goal was to stress the new approach that the South African police would take toward law enforcement and order maintenance. In light of the nature of police work, the number of issues it confronts, and the volume of crime in South Africa, there have been a number of changes in the structure of the national police service. One of those changes has been the name of the department. The rationale for the name change is touched on later, in the subsection on police and the public.
The Civilian Secretariat for Police
The South African Police Service Act (1995) authorizes the creation of a secretariat to assist the minister with the duties associated with policing. That legislation, along with the Civilian Secretariat for Police Service Act (2011), explains the purpose and role of the Secretariat. The functions of the Secretariat include the following: advise the minister on the exercise of his or her powers, duties, and functions; perform functions requested by the minister to assist with civilian oversight of the police; promote democratic accountability and transparency in the police; promote and assist with the reconstruction and development of the police service; provide the minister with legal services and advice on constitutional issues; provide the minister with various administrative support services; monitor the implementation of policy and directives issued by the minister; conduct research on policing issues; perform tasks assigned to the Secretariat by the minister; and evaluate the police and report to the minister.
National Commissioner of Police
According to section 207 of the Constitution of the Republic of South Africa, it is the president’s responsibility to appoint the national commissioner of the South African Police Service. The appointment is for a period of five years, and the term of office can be extended. The national commissioner is expected to manage the police service based on the policy directives issued by the minister of police. The specific duties of the national commissioner as spelled out in the South African Police Service Act (1995) include the following: establish the priorities and objectives of the police service on an annual basis, organize or reorganize the police service as needed, determine the numerical strength and distribution of the personnel, establish training facilities, create other units which enhance the work of the police, and perform all legal acts on behalf of the police service.
The manner in which the South African Police Service is organized is through several divisions. The operational divisions are visible policing, which is concerned with crime prevention by providing proactive and responsive services that include addressing root causes of crime, focusing on firearms and liquor control, maintaining public order, addressing safe and secure environments, and providing police emergency services; protection and security services, which are concerned with VIP protection; security of the government sector; security for various major events venues, railway police, port, and border police; criminal intelligence, which is focused on crime intelligence, counterintelligence, crime information analysis, and management and operational support; the detective service, which addresses general investigations and is especially concerned with family violence, child protection, and sexual offenses; and forensic services, which is responsible for the collection and analysis of physical evidence associated with crime detection and prevention and tasked to manage criminal records.
The other divisions focus on support issues, such as personnel management, human resource development, human resource utilization, legal services, supply chain management, information technology management, and financial and administrative services. Finally, there is an inspectorate division that is responsible for the inspection and evaluation of the various divisions. They are also authorized to investigate complaints against the police service.
The national commissioner, after consulting with the premier of each province, appoints a provincial commissioner of the South African Police Service for each province. The appointment is for a period of five years and can be renewed. The national commissioner and the nine provincial commissioners form the Board of Commissioners. It is the board’s responsibility to coordinate and promote cooperation among the various regions served by the South African Police Service.
The mission of the South African Police Service consists of several objectives that are typically found in most democratic police systems. They include the following: to prevent, combat, and investigate crime; to maintain public order; to protect and secure the people and their property; to uphold and enforce the law; to create a safe and secure environment for all people; to prevent anything that may threaten the safety and security of a community; to ensure criminals are brought to justice; and to participate in efforts to address the causes of crime.
Municipal Police
In the event a municipality wishes to establish its own police department, section 206 of the Constitution indicates that “national legislation must provide a framework for the establishment, powers, functions and control of municipal police services.” In addition, chapter 12 of the South African Police Service Act (1995) is devoted to municipal police. The chief executive officer of a municipality is responsible to the municipal council for municipal police service. It is the municipal council’s responsibility to appoint a member of the municipal police department to serve as its chief executive or chief of police. Subject to the appropriate laws, it is the chief executive’s responsibility to maintain an accountable and efficient municipal police service. This involves the important tasks of recruitment, training, appointment, promotion, and disciplining members of the police service. It should also be noted that the national commissioner of police has the authority to issue national standards for municipal police. Moreover, the South African Police Service must approve the application of a municipality to create a police department.
It should be noted that municipal policing is not a new phenomenon to South Africa. In 1854, the city of Durban established the Durban City Police. Its enabling legislation was patterned after the borough and county police constabularies that were emerging in nineteenth-century England. The Durban police were noted for providing assistance to the public and emphasizing crime prevention. In the 1930s, the responsibility for traffic enforcement was turned over to the cities. Thus, municipalities across the country developed a traffic police unit within municipal government. During the apartheid era, a number of municipalities developed their own security departments. These have been described as paramilitary organizations. Officers carried firearms, drove armored vehicles, and participated in the control of riots. Some security departments established ties with military intelligence and created a network of spies that infiltrated anti-apartheid groups.
When the negotiations were under way in determining the structure of police in the new South Africa, it was decided that there would be one police service, rather than retaining the multiple agencies that existed under apartheid. The negotiators also concluded, however, that limited law enforcement and order maintenance duties could be delegated to municipal police, if a municipality elected to establish one. The South African Police Service Act (1995) is very specific regarding the functions of municipal police. Section 64E identifies three areas of responsibility. Traffic police are to manage all road traffic and the enforcement of traffic rules. The policing of municipal by-laws and regulations includes such duties as animal control, business inspections, enforcing health standards, licensing public vehicles, and the oversight of public recreation venues. The third task is crime prevention, which includes education, environmental design, and intervention with people at risk. As a result, municipal police do not conduct criminal investigations, for that is the responsibility of the South African Police Service.
It should also be noted that municipal police officers are considered peace officers. Therefore, they have all the powers conferred on a peace officer and may exercise them within the municipal jurisdiction and outside the jurisdiction, if they are in pursuit of a person. The most important powers would include arrest, search, and seizure. In the event they arrest a suspect, they would turn the case over to the South African Police Service. With reference to civilian oversight of a municipal police department, it is the responsibility of the municipal council to appoint a committee composed of council members who are tasked with that duty. The committee would not only advise the municipal council but also the chief executive or police chief of the municipal police department. Thus, a municipal police department is accountable to the local government. Most important, the department is funded by the local government. Each of the major cities in South Africa—Durban, Johannesburg, Cape Town, and Pretoria—has established a municipal police department.
There are several management and procedural tensions that have been identified with the development of the current version of municipal policing in South Africa. First, there is a need to determine the role of municipal police regarding crime prevention and coordinating that effort with those of the South African Police Service. Second, there is a need to find the right balance for its tripartite responsibilities of policing traffic, enforcing municipal by-laws and regulations, and preventing crime. Third, there is the issue of training for these specific duties, but there is also a commitment to emphasize a more generalist approach given its community policing mandate. Fourth, there is a need to maintain standards within these new organizations and avoid the allegations of corruption that have occurred in many government agencies in South Africa. Finally, and this relates in part to the fourth item, there is a need to ensure that the police are independent from local political pressures. One of the objectives of the new South Africa was to depoliticize the police, as politicization was so apparent during the apartheid era. Efforts have been under way to address this issue with the South African Police Service. The matter needs to be squarely confronted at the municipal level too (Newham, Masuku, and Gomomo, 2002; Rauch, Shaw, and Louw, 2001).
Independent Police Investigative Directorate
Recently, the Independent Police Investigative Directorate Act (2011) enhanced the authority of the Independent Complaints Directorate, which provides oversight of the police and gave it a new name. What the new legislation does is enhance the authority of the Directorate. For example, the original legislation indicated that the Independent Complaints Directorate be informed of deaths in police custody or as a result of some police action. The new legislation finds commanders guilty of an offense if they do not report cases of police involvement in death, rape, torture, assault, and corruption.
Chapter 10 of the South African Police Service Act (1995) explained the functions of the Independent Complaints Directorate, which was established in 1997. Today, the Independent Police Investigative Directorate (IPID) consists of an executive director and four managers that deal with finance, administration, investigations, and research. Each of the nine provinces has an IPID manager. The IPID is required to issue a report to Parliament every six months on the number and nature of the cases reported.
The IPID is responsible for investigating complaints of alleged brutality, criminality, and misconduct by members of the South African Police Service and municipal police services. It is specifically mandated to investigate deaths of people during a police action, such as shootings or assaults; deaths of people while in police custody; the involvement of any member of the South African Police Service in criminal activities; police behavior that is in violation of the rules and regulations of South African Police Service, such as neglect of duty or failure to comply with the Police Code of Conduct; complaints alleging poor service; failure to assist or protect victims of domestic violence; and misconduct or offenses by members of a municipal police service. The IPID’s authority does not extend to the military or to correctional services staff.
In the annual report for 2012–2013, the IPID received 6,728 complaints. This was an increase from the previous reporting period of 2011–2012, when 4,923 complaints were received. In 2012–2013, the vast majority of complaints (4,131) alleged assault. This was followed by other criminal matters, at 703, and the discharge of an official firearm, at 670. Of the other criminal matters, 531 were recorded as attempted murder. Complaints alleging death by police action registered a decline, at 431 as compared to the previous year’s number of 488. Death in police custody, however, experienced an increase: 275, up from 232 in the previous year. Of the total number of complaints received (6,728), only 165, or 2 percent, were directed at a municipal police agency. Unfortunately, like so many of South Africa’s government agencies, the IPID has been underfunded and lacks a sufficient number of qualified investigators to carry out its mandate. While the 6,728 complaints mentioned above were new complaints for 2012–2013, there were 549 additional cases carried over from the previous reporting period. The report noted that 3,963 cases were completed during 2012–2013, or 54 percent of the total case load.
Duties of the Police
Chapter 5 of the South African Police Service Act (1995) addresses the issue of the powers, duties, and functions of the members of the police service. Section 13 is specifically directed at line officers. The very first statement in this section is reflective of the new South Africa and the goal of establishing a new South African Police Service: “Subject to the Constitution and with due regard to the fundamental rights of every person, a member may exercise such powers and shall perform such duties and functions as are by law conferred on or assigned to a police official.” It further states that once an officer is aware that an offense has been committed, the officer must notify the commanding officer as soon as possible.
In the performance of official duties the officer is reminded to employ a reasonable approach to the matter at hand. For example, if the use of force is authorized by law under the circumstances, then only a minimum use of force should be employed. The section also speaks to the issue of the reasonableness to control an illegal situation without a warrant, to search people or places, and the occasional need to pursue people across the borders of the Republic. Also noted are some of the typical duties of an officer, such as serving a summons or executing a warrant and appearing in court. It further mentions the authority exercised at a crime scene to ensure an effective investigation, such as cordoning off the area and preventing people from entering or leaving the area.
In light of the history of public order issues, the Act also addresses the reasonable manner in which demonstrations should be handled. For example, it is the responsibility of either the national commissioner or a provincial commissioner to authorize that a specific area should be closed either to restore public order or to protect the safety of the public. The cordoning off of an area cannot exceed a 24-hour period. This authorization also permits the police within the cordoned off area to search people, premises, vehicles, or other items without a warrant, and if necessary under the Criminal Procedure Act (1977), to seize items.
Like public order issues, either the national commissioner or a provincial commissioner must authorize the setting up of roadblocks. Again, the emphasis is on the reasonableness of the action and must state the purpose of the roadblock along with the date, approximate duration, and place. Any officer may set up a roadblock or checkpoint if he or she has reasonable grounds to believe that a suspect to a crime, a witness to an offense, or an escaped fugitive is attempting to flee.
The Police and the Public
In light of its past of employing violence and oppression in order to maintain the apartheid regime, the principles associated with the rule of law were almost nonexistent in South Africa’s police organizations. After 1994, there was a concerted effort to transform the South African police from a force that was often confrontational to the citizenry and that did not even treat the majority of people as citizens to one that espoused service to the community in which respect for the individual and an acknowledgement of human rights was a central feature of the organization.
As mentioned earlier, the basic purpose of the South African Police Service is spelled out in section 205 of the Constitution: “to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.” While crime prevention was the first duty assigned to the South African Police Service in the Constitution, there was also an acknowledgement of the need to reform the police after apartheid. Some questioned that both issues could be addressed simultaneously and felt these were unreasonable expectations considering the limited financial and human resources, especially in the midst of high and increasing levels of crime. Recall from earlier that two of the most significant issues confronting the new democratic government of South Africa were the degree of civil unrest and the level of crime, especially in the townships.
Nevertheless, early on, the government created an interdepartmental group to develop a national crime-prevention strategy. The group regarded crime prevention as a national priority because the level of crime in the country threatened the emerging democratic system in which the new South Africa was based. At the outset the group used the term “crime prevention” in two contexts. One focused on developing an effective criminal justice system, that is, the importance of efficient police work along with rehabilitation programs that reduced the level of criminal behavior. The other context was labeled social crime prevention, that is, by creating more jobs and encouraging young people to stay in school, the level of crime would subside.
The National Crime Prevention Strategy called for the need to emphasize crime prevention rather than crime control. They acknowledged that crime data was unreliable, a charge that continues to be voiced today, and that the manner in which the media discuss crime has an important impact on shaping public opinion of the problem. They further pointed out that it is not unusual for crime to increase when a country is undergoing a period of political transition and mentioned the former Soviet Union and Northern Ireland in that context.
The group identified a comprehensive number of crime categories that required particular concern. They included crimes involving firearms, organized crime, white-collar crime, gender violence, vehicle theft and hijacking, corruption within criminal justice, and violence associated with intergroup conflict. This last category was specifically concerned with political conflicts, taxi violence, and land disputes. To address these issues, the group developed a four-foci framework for crime prevention. The first involved the criminal justice process and the need to make it more efficient and effective by deterring criminals and reducing the likelihood of reoffending. The second focused on reducing crime through environmental design. The third addressed issues of public values and education. Of particular concern was the need to change how communities react to crime and violence. This involved programs of public education and citizen involvement in crime prevention. The fourth focus was concerned with transnational crime programs, in particular cross-border crime traffic (National Crime Prevention Strategy, 1996).
Obviously, the group called upon to develop a National Crime Prevention Strategy was acknowledging that crime and crime prevention were not just police issues. All aspects of society had an obligation and role to play in reducing crime. With reference to police, community-oriented policing was introduced, with the idea that the police should be both visible and available to the public. Central to this feature was the notion that the public could assist the police in detecting crime and enhance the sense of security within the community. Sector policing focused on the idea that together the police and community could identify problems and solutions to local crime issues. Social crime prevention drew attention to the social conditions that were often the source of crime problems. Examples included how people interacted with one another, to what extent they cared for their residential or business property, and to what degree people complied with health and safety regulations of which gun ownership and alcohol use were a particular concern. With specific reference to firearms, the government attempted to address the problem by des troying illegal firearms, introducing a firearms amnesty program, enhancing fire-arms regulations in the private security industry, and establishing stricter gun-control requirements.
In spite of these efforts, it is important to reiterate that violence had been the norm in South African society. It had a violent past, even before the emergence of the apartheid regime, and cycles of violence continued after the creation of the new South Africa in 1994. There was a large youth population, which created a large potential offender pool. In addition, there existed income inequality, high levels of alcohol abuse in some communities, and the availability of firearms. The level of violent crime was serious. There is a culture of violence in South Africa that is concentrated in urban areas, but is not exclusive to those areas, and it primarily involves young men in active criminal lifestyles. The level of gun violence and the indifference of the perpetrators illustrate dramatically the social crisis confronting the country. Homicide among young black male victims and the perpetrators is especially high, and it is estimated that two-thirds of these deaths involved an argument, while one-third were associated with another crime. South Africa has been characterized as a heavily armed country. In 2008, there were 3.7 million licensed firearms.
Although murder is the most serious of violent crimes, it is not the most common. Assaults, in particular as a factor in arguments; domestic violence; rape and sexual assault; robbery; and other property crimes are even more prevalent. Underreporting of crime is also a problem, especially of rape and domestic violence—a problem not unique to South Africa. Various victim surveys estimate that less than half of all robberies, thefts, and assaults are reported. A good deal of this attitude is associated with much of the population still not trusting the police, because prior to 1994 people did not report crime, as the South African police were associated with the repression of blacks (see Bruce in Daniel, Naidoo, Pillary, and Southall, 2010; Cock in Buhlungu, Daniel, Southall, and Lutchman, 2006; Leggett in Daniel, Southall, and Lutchman, 2005; Russell, 2010).
By 1999, the national government dropped its social crime control agenda. This did not mean, however, that it was totally abandoned at the local level. Nevertheless, the national government was motivated in part by the fact that on any given day there was an average of 50 murders, 100 reported rapes, 400 armed robberies, and 500 violent assaults. Among the victims were young girls raped by neighbors or at school. In one residential robbery, the victims were the president of the newly created Constitutional Court and his wife. No country is free from crime in general or violent crime in particular. However, the adverse publicity that South Africa was confronting regarding the level of crime, especially violent offenses, was hindering the country’s efforts to attract business investment and to expand the tourism industry. Moreover, they were scheduled to host the World Cup in 2010 and were fearful of embarrassing incidents. As a result, the government shifted its emphasis from talk of democratic policing and employing community policing techniques to a call to combat crime with a more militaristic focus that for some was reminiscent of the law enforcement tactics that were well known from the days of apartheid.
One study noted that overall crime declined somewhat in 2010–2011 (2,071,487 cases) over the 2009–2010 figures (2,121,887). For the 2010–2011 reporting period, there were: 15,940 murders, 15,492 attempted murders, 66,196 sexual offenses, 101,463 aggravated robberies, 16,889 residential robberies, 14,667 business robberies, 10,627 vehicle hijackings, 88,388 commercial crimes, and 78,383 shopliftings (Newham, Burger, Gould, and Lancaster, 2011).
Unfortunately, crime has increased in recent years. While all crime is a concern for the public and agents of the criminal justice system, violent crime has long been a particular problem in South Africa. To illustrate, the number of murders continues to increase: it rose from 15,609 in 2011–2012, to 16,259 in 2012–2013, to 17,068 in 2012–2014. In the same reporting periods, the number of attempted murders was 14,859; 16,363; and 17,110. Aggravated robberies were at 119,351 for 2013–2014, compared to 105,888 in 2012–2013. Street robberies were up at 69,074 in 2013–2014 from 60,476 in 2012–2013, and residential robberies saw an increase to 19,284 from 17,950.
Some decreases in various categories were also reported in the years from 2012 to 2014. For example, sexual assault declined to 62,649 from 66,387. Residential burglaries saw a marginal decrease to 260,460 from 262,113. Moreover, there were slight reductions in grievous assaults at 183,173, common assaults at 167,157, and shoplifting at 70,516 (South African Police Service, 2014).
Finally, it is important to note that the level of violence in the country has also taken its toll on the police. According to official statistics, 950 police officers were killed between 1991 and the election in 1994. Many of these were black officers working in the townships. From 2005 to 2010, approximately 100 officers per year were killed. For a considerable period of time, both pre- and post-apartheid, black officers have elected not to wear their uniforms in public on the way to work because of the danger of being assaulted. Moreover, there were 172 suicides of officers in 1994, and it is estimated that between 2000 and 2006, 100 officers per year committed suicide. While law enforcement can be a difficult career path in many countries, the danger and stress appears heightened in the South African context (Brown, 2008; Cawthra, 1993; Faull, 2010; Samara, 2011; Shaw, 2002; Steinburg, 2008).
Private Security
While police have both a proactive and reactive mission regarding crime, that is, they have a crime prevention agenda but also must pursue alleged offenders and investigate specific cases, private security is essentially a proactive enterprise that is in the business of preventing crimes from occurring against clients. This last point about clients is an important distinction between the two. Whereas the police have a responsibility for law enforcement and order maintenance to the public at large, private security is accountable to the organization or person that contracts out their services.
Private security has been a growth industry in much of the industrial world since the 1970s. Private security in South Africa began to protect people and private residences to a more significant degree than in other parts of the world largely because the South African police were primarily focused on protecting the apartheid regime from the growing number of protests. Today, South Africa has one of the largest private security sectors in the world. It is estimated that there are approximately 4,500 security companies or agencies in South Africa and that there are about 500,000 security guards. A number of the employees of these companies are former police, prison, and military officers.
The growth of this industry in South Africa is directly attributed to the high level of crime and the public’s distrust of the competence of the South African Police Service. In the South African context, the security industry is concerned with protecting assets, property, and people. Because of the number and frequency of violent robberies, assets in transit primarily involving banks and other businesses have been a particular problem. Nevertheless, a significant portion of the security market is residential. There remains a general fear of crime, but also insurance companies are demanding that homeowners seek further assistance from security companies. It should be noted that an estimated 700 security companies offer an armed response service in addition to an electronic security system.
The level of residential security in middle- and upper-class neighborhoods is significant. Tall brick fences, which were typical of certain styles of British-built residences years earlier, now have cut glass or razor wire at the top of the fence, which one does not find in England. Moreover, businesses utilize electric fencing or razor wire atop a regular fence. Some large companies have turned to providing VIP protection services because of incidents. These kinds of concerns have led to some businesses deciding not to locate in South Africa at a time when the country is in need of more business investment. Finally, the general concern about the level of crime, especially violent crime, has had an adverse impact on tourism, which is an industry that the government is keen to promote (Irish, 1999).
Of all the criminal justice agencies during apartheid, the police were undoubtedly hated and feared the most, because it was the organization most visible and frequently encountered by a majority of black South Africans. However, while the judiciary was not as visible to most blacks, it nevertheless was complicit in enabling the apartheid regime to continue to violate many of the basic principles associated with the rule of law. In this context, the judiciary is associated with the whole legal establishment, that is, judges and lawyers. Of course, there were exceptions to this aforementioned generalization, but they were clearly in the minority.
It was mentioned earlier that South Africa and Russia are two countries covered in this book that lend themselves to some interesting comparisons. In the past, both relied heavily on agents of their criminal justice systems to carry out the respective agendas of the apartheid and communist regimes. Today, both countries serve as illustrations of nation states that have proclaimed their goal of adopting a democratic form of governance and embracing principles associated with the rule of law. In the new Russia, the leadership acknowledged that it was prudent for the country to have a Constitutional Court that would serve as the supreme judicial body authorized to provide constitutional oversight. Likewise, the authors of the new Constitution of the Republic of South Africa recognized the value in having a Constitutional Court serve as the ultimate authority in interpreting all matters associated with the constitution. Thus, constitutional supremacy would reign over the authority of parliament or the national executive.
Chapter 8 of the Constitution of the Republic of South Africa is devoted to courts and the administration of justice. Section 165 of the Constitution states that “judicial authority is vested in the courts,” that “courts are independent and subject only to the Constitution and the law,” and that no person or state unit of government can interfere with the work of the courts. The Constitution authorizes the creation of four types of courts: the Constitutional Court, the Supreme Court of Appeal, the High Courts, and Magistrates’ Courts. It also indicates that other courts may be established by Parliament and may be comparable to High or Magistrates’ Courts.
Organization and Administration of the Courts
The judiciary of South Africa is divided into superior courts and lower courts. Figure 4.3 illustrates the organization of South African courts. Three of the tiers in the court hierarchy are superior courts, and they are presided over by justices or judges. The lower courts are represented in the fourth tier, and they are presided over by magistrates. Before the functions of these courts are described, it is important to mention briefly the role of a few government units that have a role to play in either the management of or support for the courts.
Figure 4.3 Organization of the South African Courts
The Department of Justice and Constitutional Development
The Department of Justice and Constitutional Development is a cabinet-level unit of government. The minister of justice and constitutional development is a member of the National Assembly who is appointed by the president to head this department. The Ministry of Justice and Constitutional Development is responsible for espousing and promoting the values associated with democracy, social justice, and human rights that are found in the Constitution of the Republic of South Africa. It focuses on improving the effectiveness and accountability of all units of government to legal compliance. It seeks to enhance the effectiveness and efficiency of courts and agencies that provide judicial services. Finally, it attempts to improve the quality and accessibility of legal services to citizens.
Within the ministry is the Justice College, which is the training branch for a number of court personnel. The College is responsible for training magistrates, prosecutors, family advocates, court interpreters, clerks, court managers, administrative personnel, and others working in the judiciary. After 1994, there was a good deal of attention given to providing courses designed to mainstream minorities with a legal education into practices within the justice system. Generally, training at the college is rigorous enough to eliminate candidates who aspire to careers as either prosecutors or magistrates but lack the requisite skills. Moreover, the first six months on the job is a probationary period in which the person could be terminated, if it is determined the candidate should not be retained. It should also be noted that legislation was passed in 2008 to create the South African Judicial Education Institute, which is designed to train new judges to the High Court.
Another unit within the Department of Justice and Constitutional Development is the State Attorney’s Division. This office is responsible for representing the state in civil cases in which a governmental department or agency is a party or to represent state officials who are being sued in their capacity as an official of the government.
Judicial Service Commission
The authority of the Judicial Service Commission is explained in section 178 of the Constitution. The Commission is composed of the Chief Justice of the Constitutional Court, the President of the Supreme Court of Appeal, a judge, the minister of justice and constitutional development, two practicing advocates, two practicing attorneys, one law professor, six members from the National Assembly, four members from the National Council of Provinces, four persons designated by the president after consulting the leaders of parties represented in the National Assembly, and when the matter concerns a specific High Court, the judge president of that High Court and the premier of the province concerned.
The Judicial Service Commission essentially has two responsibilities. First, it advises the national government on issues associated with the judiciary or the administration of justice. Second, it is involved in the process of screening candidates to serve as members of the judiciary. In this second capacity, the six members from the National Assembly and the four members from the National Council of Provinces are excluded from participating with others on the commission.
Director of Public Prosecutions
There is a National Director of Public Prosecutions who is appointed by the president. While the minister of justice and constitutional development is the cabinet officer who exercises the final responsibility for public prosecutions, it is the national director who has the overall daily authority for the administration of prosecutions in the country. Moreover, each of the nine provinces has a director of public prosecutions with advocates, prosecutors, and staff who are responsible for receiving information from the police about alleged criminal cases in their province and then determining if the evidence in the case is sufficient to bind the accused over for trial.
Within the National Prosecutions Service there are some specialized units that have been identified as needing particular attention. They include the Office of Witness Protection, Asset Forfeiture Unit, Specialized Commercial Crime Unit, Priority Crimes Litigation Unit, and the Sexual Offences and Community Affairs Unit.
As mentioned earlier, the judiciary of South Africa is divided into superior courts and lower courts. The superior courts include the Constitutional Court, the Supreme Court of Appeal, and the High Courts. Of the lower courts, it is the Magistrates’ Courts that concern us.
The Constitutional Court
The Constitutional Court is composed of 11 justices from which one is the chief justice and one the deputy chief justice. According to section 167 of the Constitution, the Constitutional Court is responsible for deciding only constitutional matters and ultimately decides if a legal concern is a constitutional issue. The court may decide disputes that arise between different branches or agencies of government at the national or provincial level when the matter in question relates to the Constitution. If there is a disagreement between the executive and legislative branches over the constitutionality of the proposed legislation, the court decides the constitutionality of all bills in the national and provincial parliaments. The court rules on the constitutionality of any amendment to the Constitution. It also determines whether the parliament or president has failed to fulfill a constitutional obligation. Finally, the court ultimately decides if an act of parliament or a provincial act is constitutional. National legislation and the rules of the court permit an individual to bring an issue before the court or to appeal directly to the court, if the court agrees that it is in the interests of justice. In order for a case to be heard in the court, at least eight members of the court must consider the matter. The Constitutional Court is located in the city of Johannesburg.
As mentioned already, the Constitutional Court was a new feature of the South African judiciary. The original members of the court began to hear cases on February 15, 1995. What is significant about this is that the first two cases that it heard dealt with criminal justice issues. In the case of S v. Makwanyana (1995), Makwanyana had been sentenced to death, and the issue centered on whether the death penalty was constitutional. The court ruled that the death penalty was unconstitutional, for it violated the ninth (equality), tenth (human dignity), and eleventh (right to life) rights found in the Bill of Rights. In the second case, S v. Zuma (1995), the case focused on the constitutionality of section 217 of the Criminal Procedure Act (1971) dealing with the admissibility of a confession. At issue was whether a defendant had to prove his claim that a written confession was forced under duress. The court ruled that this was unconstitutional on the grounds of the presumption that a confession was made freely and voluntarily.
The Supreme Court of Appeal
The Supreme Court of Appeal consists of a president and deputy president along with judges of appeal. The number of judges is determined by parliament. Presently, there are a total of 22. This court is considered the highest court of appeal, with the exception of constitutional issues, and may hear appeals on any matter. It is specifically delegated to hear appeals, issues associated with appeals, and any other matter that is defined by an act of parliament. As such, it is usually the ultimate court of appeal for most cases. When a case is presented in this court, a panel of three or five judges would hear the appeal, which is based on written and oral arguments. The Supreme Court of Appeal is located in the city of Bloemfontein.
High Courts
The jurisdiction of the High Courts is determined by the territory each serves. There are 13 High Courts: 10 are provincial and three are local. Each court has a judge president and at least one deputy president. The number of judges serving a court is usually determined by the judge president. According to the Constitution, High Courts can decide constitutional cases, as long as the matter in question is not the sole responsibility of the Constitutional Court or is assigned to another court by an act of parliament. High Courts have both appellate and original jurisdiction. The appellate jurisdiction is limited to appeals from a Magistrates’ Court. When a High Court sits to hear an appeal, at least two judges would handle the matter.
The original jurisdiction in civil matters involves cases in which the issue amount is greater than 100,000 rand. With regard to criminal cases, it must be deemed a serious criminal offense. Original jurisdiction cases are heard by a single judge. In the event a very serious criminal case comes to the court, a judge might be joined by two assessors. Assessors are usually advocates or magistrates who have retired from active work. The role of assessors is explained later. Within each of the High Courts is the Special Income Tax Court. A single judge would sit to hear such cases and be assisted by an accountant and a member of the business community.
Magistrates’ Courts
Magistrates’ Courts are responsible for less serious civil and criminal cases. These courts are divided into two categories. Regional Magistrates’ Courts deal exclusively with criminal cases with the exception of treason. These Regional Magistrates’ Courts can also impose a term of imprisonment of up to 15 years or a fine of up to 300,000 rand. The other category is the District Courts. They are authorized to handle both civil and criminal cases. With reference to criminal cases, they can sentence an offender to prison for up to three years or a maximum fine of 100,000 rand. A single magistrate hears a case. In some instances a magistrate may select one or two people from a list to sit as an assessor. As mentioned, the role of assessors is discussed later. It should also be noted that Maintenance Courts deal with child-support issues and are also found in the Magistrates’ Courts.
Specialized Courts
For our purposes there are essentially two kinds of specialized courts. One group deals with noncriminal matters. They include Labor Courts and Labor Appeal Courts (which have a similar status to that of a High Court), Divorce Courts, Land Claims Court, the Water Tribunal, and Small Claims Courts. Children’s Courts were created to deal with child custody issues. The establishment of Equality Courts illustrates the country’s commitment to issues associated with hatred or discrimination. These courts deal with a host of issues, such as age, culture, disability, economic or social status, ethnic or social origin, gender, HIV status, language, nationality, marital status, race, religion or conscience or beliefs, and sexual orientation. Finally, the Courts of Chiefs and Headmen have jurisdiction over matters at the level of a magistrate’s court when the matter deals with an issue of customary law. The matter at hand may deal with a dispute regarding livestock or lobolo, which is usually translated as bride price.
The other group of specialized courts focuses on criminal matters. For example, Community Courts deal with petty criminal issues, such as shoplifting, petty theft, drunkenness, drinking in public, minor traffic offences, various offenses on trains, and common assault. Sexual Offenses Courts are designed to assist children and other victims with the support and care needed during the trial process. The Child Justice Courts will be discussed in the section on juvenile justice.
The Legal Profession
For our purposes, the South African legal profession is divided into four groups: attorneys, advocates, judges, and magistrates. South Africa’s long association with the British Commonwealth had a significant impact on the development of the country’s legal profession. As in England, there are two types of lawyers in South Africa. While they do not employ the English terms of “solicitor” and “barrister,” the result is essentially similar for South Africa’s attorneys and advocates.
Attorneys
The role of attorneys in South Africa is similar to that of solicitors in England. They are the office lawyers or legal generalists who handle most of the legal paperwork that most people need from a lawyer. They are also found working in lower courts. If a case is scheduled for hearing in a higher court, especially at the appellate level, or requires a specialist in a legal area, the attorney would seek the services of an advocate.
Anyone planning to become an attorney must first earn an LL. B. (Bachelor of Laws) degree, which is an undergraduate law degree offered at a South African law school. A person may also enter a law school program as a postgraduate and complete the degree at an accelerated pace in light of their original undergraduate degree. For admission as an attorney, the person would be interviewed by a senior member of the Law Society along with a background check before they would be permitted to apply for “articles.” Service under articles of clerkship, or articling, is a two-year period of apprenticeship in which the law graduate acquires practical training in the skills of drafting legal documents and is provided an orientation to the legal profession either with a practicing attorney or a state’s attorney. The period of articling may be reduced if the candidate has enrolled full-time at the School for Legal Practice for a period of six months or has performed service in the community at a law clinic. The candidate would then sit for an examination that is prepared by the provincial Law Society. It consists of four parts: practice and procedure in various courts, wills and estates, contracts, and rules of conduct and legal bookkeeping.
Advocates
As mentioned, advocates are the legal specialists, especially at oral argument in court. Thus, they are similar to that of English barristers. Advocates are employed by attorneys to represent a client either in a higher court or in an appellate court. They are selected by the attorney based on their expertise in a particular branch of the law and their skill at oral advocacy. Advocates are either junior or senior counsel, with all advocates starting out as junior counsel. After a period of practicing law for at least 10 years and with the endorsement of the Bar Council, the president of South Africa may acknowledge the person’s expertise and appoint them senior counsel. The advocate would then put the letters SC after his or her name.
The requirements for becoming an advocate are somewhat similar to that of an attorney. For a person to be considered a candidate to be an advocate, they must secure the L.L.B. degree as was the case with candidates aspiring to become attorneys. Candidates must become members of a Bar Association or societies, which are organized at each of the locations of a High Court. They must participate in a one-year practical skills training program, referred to as a pupilage, with a practicing advocate and then pass the bar examination. The successful person would then begin their career as a junior counsel.
Judges
Judges are appointed by the president in the role of head of the national executive. According to section 174 of the Constitution, the president must consult the Judicial Service Commission and the leaders of the parties represented in the National Assembly when appointing the Chief Justice and Deputy Chief Justice to the Constitutional Court and after consulting the Judicial Service Commission on the appointment of the President and Deputy President of the Supreme Court of Appeal. With specific reference to the Constitutional Court, the president appoints the other justices after consulting with the Chief Justice and leaders of the parties represented in the National Assembly. The Judicial Service Commission prepares a list of potential candidates for the president, and the list contains at least three names more than are needed to fill any vacancy. The president can either make the appointments from the list provided or elect to have the Judicial Service Commission provide a supplemental list of candidates, which must be used to complete the process. At least four members of the Constitutional Court must have been serving as judge when selected to serve on the Constitutional Court. Finally, the president appoints all the other judges in the South African court system after consulting with the Judicial Service Commission.
Constitutional Court justices serve a single nonrenewable term of 12 years or until they reach 70 years of age. An extension to the term of office can occur through an act of parliament. All the other judges hold office based on terms spelled out in various acts of parliament. Judges can be removed from office only if the Judicial Service Commission concludes the person is incapacitated, incompetent, or guilty of misconduct or if the National Assembly calls for a resolution that has the support of two thirds of its members to remove a judge.
Magistrates
Magistrates are appointed by the minister of justice and constitutional development. These officials are not referred to as judges. They serve in lower courts, that is, the magistrates’ courts. The educational qualifications to serve as a magistrate are at least a B. Juris, a three-year diploma, or a B. Proc. degree in law, but it is recommended that a candidate secure the LL.B. degree. A B. Juris degree would not entitle a person to practice law as an attorney or advocate; it would allow employment in law-related work. A B. Proc. degree would enable a person to pursue candidacy as an attorney but not as an advocate. Moreover, the candidate must successfully participate in a course at the Justice College and complete six months of practical training at the magistrate court at which the candidate is seeking employment.
The minister is assisted in identifying qualified candidates to serve as magistrates by consulting the Magistrates’ Commission. The composition of this commission and procedures for selecting people are similar to that of the Judicial Service Commission, which was explained earlier in the process of selecting judges. In addition to appointing, promoting, or transferring magistrates, the Magistrates’ Commission is also responsible for receiving complaints, investigating grievances, taking disciplinary steps, and discharging people from service as magistrates. In recent years, the Magistrates’ Commission has received praise from the Law Society of South Africa for dealing with magistrates found unfit to function as judicial officers.
Assessors
At section 180 of the Constitution, it indicates that legislation may enable lay participation in the administration of justice. This statement is an acknowledgement of both the past practice and the potential for exploring other avenues to include the public in the administration of justice in the newly created democratic country. In the past, the English jury was introduced in 1828 at the Cape. Throughout the first half of the twentieth century, more trials were conducted without a jury. Finally, the Abolition of Juries Act (1969) ended this method of lay participation in the administration of justice.
This void in lay participation was filled to a limited extent by assessors. Section 145 of the Criminal Procedure Act (1977) authorized judges to decide if they wanted to sit singly or with assessors. A judge may elect to utilize one or two assessors that help in the decision-making process. Assessors are usually advocates or magistrates who have retired from active work. A person may also be selected to serve as an assessor because of a technical expertise. When assessors are employed, the judge decides questions of law or a mixture of law and fact, whereas the judge and the assessors decide issues of fact. Sentencing is the sole responsibility of the judge.
Since 1954, magistrates’ courts were permitted the use of assessors, but they were seldom utilized. Again, magistrates had the choice to use assessors and could avail themselves of either one or two, and these assessors were not required to have any legal training. The magistrate would decide questions of law or a mixture of law and fact. The magistrate and assessors would decide issues of fact. The Magistrates’ Courts Act (1944) was amended in 1991 and indicated that if a person was being tried in a regional Magistrates’ Court on the charge of murder, the magistrate must employ two assessors unless the accused declined a trial with assessors.
Prior to 1994, all the magistrates were white and male. Many blacks saw courts in general and the criminal justice courts in particular as “white man’s justice”; they did not trust any court, for the courts had been a significant vehicle in support of the apartheid regime. A goal throughout the first half of the 1990s was to utilize assessors to a greater extent. By employing more assessors, it would enable magistrates to select black people who were familiar with the cultural nuances of the local community.
Since the mid-1990s, there has been a decline in the use of assessors, especially in the magistrates’ courts. Part of the reason has to do with the fact that there are now many blacks serving as magistrates and prosecutors in magistrates’ courts. There was also criticism over the reliability and competence of some assessors as factors in delays and postponements of trials. Related to these concerns was the cost of the assessor program in light of an underfunded court system (Gordon, 2006; Seligson, 2001; South African Law Commission, 1997).
As was mentioned in the introduction to this book, South Africa is an example of a country that borrowed from both the Romano-Germanic and common law legal families. When the Dutch established an outpost in 1652 at the Cape of Good Hope for the United East India Company, they brought with them Roman-Dutch law. Roman-Dutch law was the law of the Netherlands in general and of the province of Holland in particular; it is considered a subset of the Romano-Germanic legal family. When the Cape came under the control of the British in 1806, the common law was introduced, but not totally, for the British guaranteed the continued use of Roman-Dutch law.
It is interesting to note that Roman-Dutch law was losing influence in the country of its origin, because at the beginning of the nineteenth century the Netherlands had embraced the codification movement by importing the Napoleonic code of France. As the British colonial power expanded in the region now called South Africa, English law influenced, and in some cases was adopted in, certain areas of law. For example, the English law of criminal procedure and the law of evidence were incorporated into the South African legal system in 1828 and 1830, respectively. Moreover, the English court system replaced the Dutch court hierarchy, and trial by jury, another common law feature, was introduced. When the Union of South Africa was established with a constitution in 1910, the position of English law was enhanced further. This would remain the case both before and during the period of apartheid (1948 to 1994).
It has also been suggested that the South African legal system in a sense incorporated characteristics associated with the socialist legal family during the period of apartheid. Just as socialist law was utilized by the Communist Party to advance its agenda in the Soviet Union, law, in the South African context, was a central feature of the National Party’s development and implementation of its apartheid policy. With the official demise of apartheid, the new political and constitutional order renewed its association more completely with the Romano-Germanic law and common law legal families. As a general rule, the Romano-Germanic, or more specifically, Roman-Dutch law is employed in the following areas: Roman-Dutch common law, law of contracts, law of delict (tort), law of the family, and law of persons. English law has influenced company law, laws of evidence, and the laws of procedure.
It should also be noted that customary law has had and continues to have a limited role to play in the legal system of South Africa. Customary law is associated with the indigenous legal systems that existed before the Dutch arrived in 1652. Customary law is unwritten and orally passed on to the next generation. It is associated with the original people living in South Africa and relates to the cultural traditions of a specific native group. Customary law, however, is not employed to decide issues associated with criminal law or criminal procedure. Customary law tends to deal with issues associated with marriages, guardianship, land tenure, and succession.
Law Reform Commission
In 1973, the Law Reform Commission was created through the South African Law Reform Commission Act. Members of the Commission are appointed by the president of the Republic. It must include a judge either from the Constitutional Court, the Supreme Court of Appeal, or a High Court. Other Commission members may be judges, professors of law, advocates, or attorneys. The principal purpose of the Commission is to conduct research on any aspect of law with the objective of making recommendations to the government on improving, modernizing, or reforming the law. Programs of study must first be approved by the minister of justice and constitutional reform. The research is carried out by teams of in-house lawyers who have a good deal of experience in research and law reform. Among some of the more recent projects are community dispute resolution structures, family law and law of persons, adult prostitution, review of the law of evidence, and expunging certain criminal records.
Criminal Law
South Africa does not have a Criminal Code. Criminal laws essentially fall into one of two categories: common law offenses and statutory offenses that are recorded in the Government Gazette. Common law offenses are those crimes that have existed for centuries and are common to most societies. The tradition in some societies was that a number of these offenses were created by judges. With the establishment of modern democratic states, the judiciary has been prohibited from creating new crimes, as that responsibility has passed to the legislature. The common law offenses in South Africa include abduction, arson, assault, bestiality, bigamy, contempt of court, crimen injuria (impairing the dignity or privacy of a person), culpable homicide (negligent killing of a person), defamation, defeating or obstructing the course of justice, exposing an infant (exposure and abandonment in which death is likely), extortion, forgery and uttering (forgery is making the document and uttering passing off a forged document), fraud, high treason, housebreaking with intent to commit a crime, incest, indecent assault, kidnapping, malicious injury to property, murder, perjury, poisoning, public indecency, public violence, rape, receiving stolen property, robbery, sedition, theft, violating a corpse, and violating a grave.
Statutory crimes are recorded in the Government Gazette, the official record of the government of South Africa. The Gazette publishes all government notices, presidential proclamations, regulations, and for our purposes, acts or amendments to existing acts of parliament. Thus, statutory crimes emerged as more modern forms of deviant behavior that often threatened the collective welfare of society—for example, crimes associated with environmental laws, road traffic offenses, substance abuse, and white-collar offenses. Organized crime has also generated offenses related to various criminal enterprises.
The judiciary does retain a role to play in defining new crimes, that is, in the context of judicial review. In those countries that have established a constitutional system of governance in which the constitution is supreme, it is ultimately the responsibility of courts—in the case of South Africa, the Constitutional Court in particular—to monitor all legislation in order to determine if it is in compliance with the Constitution in general and the Bill of Rights in particular.
Criminal Procedure
Section 35 of the Constitution of the Republic of South Africa is devoted to several issues associated with criminal procedure. The section is referred to as “Arrested, detained and accused persons,” and it is divided into five parts. The first part is concerned with the rights of a person who has been arrested. These include the right to remain silent, which consists of being informed promptly of this right and the possible consequences of not exercising this right; the right not to be compelled to make a confession or admission; the right to appear in court within a reasonable time, which is not later than 48 hours after the arrest; the right to be informed of the charges at the first court appearance and the reasons to continue the detention, if necessary; and the right to be released from detention, if the circumstances are reasonable in the interests of justice.
The second part focuses on the rights of a person who is detained, and this includes people sentenced to a term of incarceration. The specific rights include the right to be promptly informed of the reason for the detention; the right to be informed promptly of the right to select and consult with a legal practitioner; in the event the person cannot afford a legal practitioner and in the interests of justice, the person should be promptly informed of the right to have a legal practitioner assigned at state expense; the right to challenge the lawfulness of the detention in a court; the right to have the conditions of confinement be consistent with human dignity, which consists of adequate accommodation, nutrition, medical care, and reading materials; and the right to communicate with and be visited by a spouse or partner, relatives, a chosen religious counselor, and a chosen medical practitioner.
The third part addresses issues associated with a fair trial. This deals with the right to be informed of the details of the charges; the right to have adequate time to prepare a defense; the right to a public trial in a regular court; the right to have the trial commence and conclude within a reasonable period of time; the right to be present during the trial; the right to choose and be represented by a legal practitioner, and in the event the person cannot afford a legal practitioner and in the interests of justice, the person should be promptly informed of the right to have a legal practitioner assigned at state expense; the right to be presumed innocent; the right to remain silent and not testify during the trial; the right to provide and to challenge evidence; the right not to be compelled to give self-incriminating evidence; the right to be tried in a language that the accused understands, and if this is not possible, the right to have a translator present; the right not to be convicted of an act of commission or omission that was not an offense under national or international law at the time of the alleged offense; the right not to be tried for an offense in which the accused has already been either acquitted or convicted; the right to receive the least severe of the sentences if the severity of the sentence has been changed from the time when the offense was committed and the time of imposition of the sentence; and the right to appeal to or have a review by a higher court.
The fourth part requires that all information communicated to the accused must be in a language that he or she understands. Finally, the fifth part states that the manner of collecting evidence must be excluded if it violated any right in the Bill of Rights on the grounds that the trial and interests of justice would be compromised. The rights listed in the Bill of Rights were cited earlier in the section on government, specifically the subsection on the Constitution.
In light of the history under the apartheid regime, the Constitutional Court has an important role to play in determining if the various agencies of the criminal justice system are in compliance with the aforementioned rights spelled out in section 35 of the Constitution that are associated with criminal procedures. The court was active straightaway in interpreting various rights in the justice process. As mentioned earlier, in the case of S v. Makwanyana (1995), the court ruled that the death penalty was unconstitutional because it violated the ninth (equality), tenth (human dignity), and eleventh (right to life) rights found in the Bill of Rights. In S v. Zuma (1995), involving the constitutionality of section 217 of the Criminal Procedure Act (1971) dealing with the admissibility of a confession in which a defendant had to prove his claim that a written confession was forced under duress, the court ruled that this was unconstitutional on the grounds of the presumption that a confession was made freely and voluntarily.
In addition, the case of S v. Ntuli (1995) centered on the issue of a provision in the Criminal Procedure Act (1971) that denied a prisoner the automatic right of appeal after having been convicted in a magistrate’s court without legal representation. The court ruled that this was unconstitutional on the grounds that the defendant was denied a fair trial. In S v. Williams (1995), the court ruled that corporal punishment of juveniles was unconstitutional because it violated the tenth (human dignity) and twelfth (freedom and security of the person) rights found in the Bill of Rights. Finally, in S v. Bhulwana (1996), the court addressed a section of an old law that did not support the notion of the presumption of innocence. The Drug and Drug Trafficking Act (1992) indicated that if a person had 115 grams of marijuana in his or her possession it was assumed that they were dealing in drugs. As such, the burden of proving otherwise fell to the accused. The court ruled that this was unconstitutional on the grounds that it violated such rights as the presumption of innocence, the right to remain silent, and the right to a fair trial.
Pretrial
Before the commencement of a criminal trial, it is the police and the public prosecutor who have investigated the alleged crime and determined that the case should be bound over for trial. It should be noted that South Africa’s criminal procedures enable a private prosecution to occur in the event that the public prosecutor declines to bring the matter to trial. A private person or his or her legal representative may conduct the private prosecution if the person can prove that he or she has a significant interest in the case or is a member of the victim’s family or a legal guardian of the victim. While the costs of a private prosecution are the responsibility of the prosecutor, the court may order the accused, if convicted, to pay the costs and expenses. If the private prosecution is unsuccessful, the court can order the private prosecutor to pay the costs and expenses of the accused. Before the start of a trial involving a private prosecution, the public prosecutor may apply for a motion to stop the proceedings and institute a public prosecution.
With reference to the defense, the Legal Aid Act (1969) provides legal aid and representation to indigent people. The notion that all people should have representation in court irrespective of their ability to pay is enshrined in section 35 of the Constitution, which states that people detained have a right to consult with a legal practitioner or have one assigned at state expense. For a trial, people have a right to choose a legal practitioner or have one assigned at state expense. Legal Aid South Africa was created as a result of the Legal Aid Act (1969); it facilitates providing indigent people with legal assistance. With regard to criminal cases, Legal Aid South Africa first determines if the person is indigent. If this is the case, they then determine if the charges against the person could lead to a period of incarceration if convicted. If a sentence to prison is possible, the person would be granted aid through Legal Aid South Africa. Justice centers as well as law clinics associated with universities exist to provide legal aid.
Bail
The right to bail is addressed in section 35 of the Constitution, which indicates that accused persons may be released from detention when it is in the interests of justice. Conditions may be imposed. When the offenses are minor, the police may issue bail before the accused’s first appearance, which is secured only with a cash bond. Prosecutorial bail permits the release of the accused until the first court date. It is secured by a cash bond and has conditions imposed on the released person’s freedom. After the accused’s first court date, the ultimate decision to grant or continue bail passes to the courts. Conditions of bail include the typical restraints of requiring reporting to a specific person at a specific time, compelling the accused to remain within the jurisdiction of the court, restricting places the accused can frequent, and prohibiting communications with witnesses. The prerequisite for release on bail is a sum of money deposited with the court that may or may not require sureties.
The public outcry over the level and volume of violent crime in the country has led to restrictions on the use of bail by people accused of serious crimes. According to the Criminal Procedure Second Amendment Act (1997), it is the responsibility of the accused to claim that “exceptional circumstances” exist to warrant the granting of bail. This essentially precludes people charged with serious offenses, such as murder, rape, serious fraud, and major theft from being considered for bail. In S v. Dlamini (1999), the Constitutional Court supported the statute’s “exceptional circumstances” requirement, in part on the grounds that it was sensitive to public order issues, that is, the need to maintain the peace and security of the public. This was in reference to public disturbances over the release on bail of some people who had been charged with serious crimes.
Plea Bargaining
The Criminal Procedure Second Amendment Act (2001) codified the approach to plea bargaining. It permits the prosecutor and defense counsel to agree on the sentence to be imposed. The court does not participate in the plea negotiations, and the agreement needs to be reached before the start of the trial. The court’s responsibility is to determine if the agreement is just and to examine the accused in order to determine if he or she understands the agreement and is admitting guilt to the allegations in the case.
The Trial
While the South African approach to criminal procedure is clearly accusatorial in nature, it should be noted that the court can subpoena a witness to appear at a trial and give evidence in the interests of justice. The party that is opposed to this is given an opportunity to offer a rebuttal. The court is entitled to question any witness for purposes of clarifying an issue but generally plays a passive role in the course of a trial. The standard trial procedures for the main hearing include the following steps:
1. While an opening statement by the prosecutor is not required, it can be helpful in complicated cases to assist the court in understanding the dimensions of the case.
2. The prosecutor then calls and examines witnesses. With the exception of some specific provisions in the law, witnesses must give their evidence orally.
3. Defense counsel is then permitted to cross-examine witnesses as they appear.
4. The prosecution may reexamine a witness after they have been cross-examined by defense counsel.
5. If after the prosecution has closed its case and the court concludes that there is no evidence or insufficient evidence to prove that the accused committed the offense charged with or any other offense, the court can return a verdict of not guilty.
6. Assuming the accused has not been discharged, the defense presents its case. Rarely does the defense make an opening statement about its case, because that has become clear through the cross-examination of the prosecution’s witnesses. While the defendant has the constitutional right to remain silent, if he elects to testify, he would speak first before any other witness for the defense and must testify under oath. The prosecution is permitted to cross-examine the accused. This is followed by defense counsel reexamining the accused.
7. Other defense witnesses are then called to testify.
8. The prosecution is then permitted to cross-examine defense witnesses as they appear.
9. Defense counsel may reexamine a witness after they have been cross-examined by the prosecutor.
10. The prosecutor may address the court with closing remarks.
11. The defense then offers closing remarks.
12. The court then returns a verdict. If the defendant is found not guilty, the person is released immediately. If the defendant is found guilty, the court would impose a sentence. The sanction should not only fit the crime but also the defendant, that is to take into consideration the pre-sentence report on the offender and any mitigating or aggravating factors.
The Criminal Procedure Act (1977) explains the types of sentences that are available to courts. They include imprisonment, committal to a treatment center, a fine, or correctional supervision. The offender might also be considered for a suspension of the sentence with various conditions, a conditional or unconditional postponement from imposing the sentence, and a caution and discharge.
According to section 35 of the Constitution, everyone has the right to a fair trial, and this includes the right to appeal their case or to have it reviewed by a higher court. The purpose of an appeal or a review is to set aside either the conviction or sentence or both. An appeal is concerned with the substantive manner in which the decision was made. Thus, an appeal might challenge the facts of the case or the law and how it was interpreted. A review raises issues associated with the correctness of the proceedings.
It should be noted that some sentences of a magistrates’ court are automatically reviewed. There are two situations that prompt this automatic review. The first relates to whether the magistrate has served a minimum of seven years as a member of the judiciary. Less than seven years of service automatically leads to cases adjudicated in that person’s court being reviewed. The second reason for an automatic review deals not only with the length of service but also the nature of the sentence imposed. For example, if a magistrate with less than seven years of experience sentences a person to more than three months of incarceration, then an automatic review occurs. If a magistrate had more than seven years of experience and sentenced the defendant to more than six months in prison, then an automatic review would be justified.
Victims
According to section 234 of the Constitution of the Republic of South Africa, parliament can adopt various charters that are in keeping with enhancing the democratic provisions in the constitution. With reference to criminal justice, an important example of this is the Service Charter for Victims of Crime in South Africa. This charter was approved in late 2004 and implemented in late 2007. Essentially, the Charter states that victims of crime are entitled to services that are designed to eliminate the victim being victimized by the justice process, focus attention on the victim through the justice process, identify the services that are available to a victim, and provide victims with recourse if the justice process is out of compliance with the standards.
Among the rights spelled out in the Charter is the right to be treated with fairness and respect, especially as it relates to dignity and privacy. The police during an investigation and the prosecutors and other court personnel at trial have important roles to play here. The victim has the right to offer information. This could involve the police and prosecutors at the investigative and trial stages, but it also includes parole hearings. Another right is for the victim to receive information. This may include explanations in one’s own language, the availability of various services, the victim’s role in the case, the approximate duration and dates of the case, information about the witness protection program, information on the status of the case and that of the offender (arrested, charged, bail granted, indicted, convicted, and sentenced), and reasons to or not to prosecute. The right to be free from harassment and fear may lead to protection from such threats. The right to assistance may involve counseling, health, or social services. The right to compensation deals with the loss or damage to property. Finally, there is the right to restitution for goods or property taken or damaged.
With regard to victim services, it has been suggested that the government should improve its funding for civil society organizations that assist with victim services. It is also recommended that research be conducted to identify best practices in providing such services, that minimum standards of service be established, and that effective methods to measure and regulate these services be created. Another suggestion is to explore the value of restorative justice with victims. The examples noted included family group conferences and victim–offender mediation. Finally, it is important to acknowledge that victimization can occur by the state while a person is in state custody. Of particular concern are the most vulnerable, that is children, the disabled, and the elderly (Frank, 2007).
In the new South Africa, two pieces of legislation are designed to regulate the correctional authorities. The Bill of Rights in the Constitution of the Republic identifies rights that were either not recognized or were disregarded under the apartheid regime. To illustrate, section 10 indicates that human dignity is a right that should be respected and protected. Section 11 proclaims the right to life, and as mentioned earlier, the Constitutional Court has ruled that the death penalty is unconstitutional. Section 13 prohibits people from being subjected to forced labor. Black prisoners were often forced to work during periods of incarceration, including in the private sector, such as on large farms during harvesting seasons.
It is section 12, however, that mentions a number of conditions to which prisoners were frequently subjected and that are now prohibited by the Bill of Rights. The Bill of Rights includes prohibitions against the denial of freedom without just cause, detention without a trial, torture, and cruel and inhuman treatment. Thus, like the police, courts, and law, the correctional system during the apartheid era was complicit in supporting the regime’s policies (Suttner, 2001).
The other piece of legislation that is significant is the Correctional Services Act (1998), which provides the regulations for the administration of the Department of Corrections in South Africa. The regulations encompass issues associated with prisons, community corrections, and parole.
Sentencing Philosophy
There are essentially four categories or rationales in sentencing: retribution, isolation, deterrence, and rehabilitation. The most prominent South African rationale tends to emphasize retribution often with isolation. The aim is usually to isolate the offender from the general public because of the harm and suffering caused by his or her criminal actions. Such a sanction may also include a fine and a period of correctional supervision. In light of the Constitution of the Republic of South Africa, capital and corporal punishments, which were common under the apartheid regime, are no longer permitted.
The Criminal Procedure Act (1977) explains the types of sanctions available for persons found guilty of a criminal offense. Section 276 focuses on the sentence of imprisonment, and there are various types. For example, the most common form of imprisonment is a term that is determined by the court. High Courts can impose any period of imprisonment; regional magistrates’ courts are limited to a 15-year sentence; and district magistrates’ courts are further limited to a period of incarceration of no more than three years. Obviously, the nature of the crime will determine which court would adjudicate the case. If a person is deemed a dangerous criminal, he or she may receive an indeterminate sentence. Regional magistrates’ courts and High Courts can impose this sanction. A person who has been assessed as a habitual criminal may be sentenced to at least seven years in prison. Finally, life imprisonment is the most severe sanction.
A fine has long been the most common sanction imposed by courts in South Africa. Three factors influence the court’s decision to impose this sanction: imprisonment is not necessary, the offender can pay the fine, and the crime involved some type of financial gain for the perpetrator. Statutory provisions determine the range of fines imposed.
According to section 296 of the Criminal Procedure Act (1977), a commitment to a treatment center can be imposed either with another sanction or in lieu of any sentence. This sanction was created in light of the Prevention and Treatment of Drug Dependency Act (1992). Noninstitutional sanctions, such as correctional supervision, will be discussed later.
Organization and Administration of Correctional Services
The mission of South Africa’s Department of Correctional Services is to enforce the sentences of the courts by detaining offenders in a safe and humane manner. Moreover, they are tasked with focusing on correcting offending behavior through the promotion of social responsibility and human development. There are presently 242 correctional centers: eight are for women, 13 for youths, 130 for men, and 91 can accommodate women in a section. It should be noted that within women’s facilities, female offenders may keep their children with them until they reach the age of five years. Within this total number of correctional centers are two maximum-security private prisons. South Africa’s correctional facilities are overcrowded by about 35 percent of capacity. There are more than 150,500 inmates, of which almost 104,900 have been sentenced and approximately 45,700 have not been sentenced. Of these inmates, almost 147,200 are male and approximately 3,380 are female. South African correctional services have about 38,700 staff members, of which approximately 32,000 are correctional officers (Department of Correctional Services, Annual Report 2012–2013). Figure 4.4 illustrates the organizational and management structure of the South African Department of Correctional Services.
Department of Correctional Services
The Department of Correctional Services is a cabinet-level unit in the South African government. The minister of correctional services is appointed by the president and is a member of the National Assembly. How the correctional system is managed is largely controlled by the Correctional Services Act (1998) and subsequent amendments to that legislation. A significant feature of the Correctional Services Act is the importance placed on human dignity, the tenth right listed in the Bill of Rights. Chapter 2 of the Correctional Services Act addresses the notion of custody under conditions of human dignity. A long list of items and general policies follow, which includes the protocol for admitting a person to prison involving hygienic and medical procedures, accommodations, nutrition, clothing and bedding, exercise, health care, contact with outside community, development and support services, recreation, access to legal advice, and reading materials. The list also includes issues associated with the control of the inmate population, such as discipline, safe custody, searches, mechanical restraints, and nonlethal incapacitating devices.
Figure 4.4 Organization of the South African Correctional Services
National Commissioner of Correctional Services
The National Commissioner of Correctional Services is accountable to the minister of correctional services for the overall governance of the organization, its fiscal management, compliance with all statutory requirements, and codes of conduct and professional ethics. The commissioner is aided in these endeavors by several chief deputy commissioners for operations and management, that is, strategic planning, monitoring, evaluating, and coordinating project management; information management systems and information communications technology; corrections management; development and care of services and programs for offenders; corporate services, that is, human resource management; financial management and accounting; and liaison with the African Correctional Services Association (ACSA) and the Southern African Development Community (SADC). Operationally, correctional centers are located in one of six regions: Gauteng, Freestate and Northern Cape, Kwazulu Natal, Eastern Cape, Western Cape and Limpopo, and Mpumalanga and North West. Each region is administered by a commissioner.
Inspecting Judge
It has been mentioned that there are several state institutions that have been designed to support constitutional democracy in the capacity to receive and in some cases investigate complaints. One notable example that was mentioned was the Public Protector. Within the criminal justice system, reference has already been made to the oversight responsibilities of the Independent Police Investigative Directorate and the Judicial Service Commission. The responsibility of oversight of the correctional services falls to the Inspecting Judge.
The authority and responsibilities of the Inspecting Judge were authorized in section 85 of the Correctional Services Act (1998). The holder of the office is appointed by the president and must be either a judge or a retired judge from either the Supreme Court of Appeal or a High Court. The Inspecting Judge is an independent office and is authorized to inspect prisons with the goal of reporting on the treatment of prisoners, examining the conditions of the correctional facilities, and identifying any corrupt or dishonest practices within correctional institutions.
The Inspecting Judge is authorized to appoint people with professional backgrounds in law, medicine, and criminology to assist with the work of the office. The Judge appoints full-time investigators, usually correctional staff seconded to the office and accountable to the Inspecting Judge. The Inspecting Judge may receive and investigate complaints that have been raised by the minister or commissioner of correctional services or from a visitor to a correctional facility. Following each investigation, a report is submitted to the minister of correctional services. Finally, an annual report is submitted to the president and to the minister of correctional services.
Parole
Most of the provisions in the Correctional Service Act (1998) were only gradually implemented. For instance, the changes that brought about the new parole system were not operational until October 2004. It is this statute that explains how parole is regulated. Prior to the passage of this legislation, parole boards were limited to an advisory function, but now they have an independent authority, at least in theory.
Parole is the conditional release of an inmate from a correctional center into the community. The offender is subject to various conditions. Among the stipulations that could be imposed are: reside at a fixed address, refrain from the use of alcohol or other drugs, refrain from associating with certain people, avoid contact and threatening a specific person, avoid certain places, seek and maintain employment, participate in various treatment or support programs, and if the court ordered, pay victim compensation.
Most inmates are eligible for parole consideration after having completed half of the court sentence or having served 25 years. A person serving a life sentence is considered for parole after serving 25 years, and a habitual criminal is considered for release after serving seven years. In most instances, the parole decision is made by the local parole board. There are two exceptions to this rule. If a person is sentenced to life imprisonment, the minister of correctional services ultimately determines the inmate’s eligibility. If a person is declared a dangerous criminal by a court at trial, the court would decide if the person should be granted parole.
There are 52 Correctional Supervision and Parole Boards in South Africa. Each board is chaired by a member of the community. This person, along with two additional community members, would receive training regarding legislation, the parole process, and policies associated with parole. A parole board would also have a vice chair and secretary who are staff members of the Department of Correctional Services. A board can also have members from the police and the Department of Justice and Constitutional Development.
Before a parole board meets to consider a specific case, a case management committee within the Department of Correctional Services has assessed the prisoner’s eligibility for parole consideration It is important to emphasize throughout this process that an inmate does not have a right to parole. Among the factors that are considered with each parole application is whether the inmate is suitable for parole. A person’s unsuitability would be based on factors including: did not comply or adapt to imprisonment, has behavioral problems, does not work or cannot comply with the conditions of release, and/or poses a danger to the community.
On the day of release, a quorum of at least three members of the local parole board, of which either the chair or vice chair is presiding, would entertain a parole application. Victims and other complainants may also be in attendance and be heard. Ultimately, the board makes its decision after considering any statements from the aforementioned parties and on reviewing a report on the inmate that addresses the type of crime committed; length of sentence; seriousness of the offense; conduct of the offender, especially in the correctional center; progress toward treatment; and the availability of a support system in the community for the inmate. When an inmate still poses a threat to the community, has failed to adapt to life in the correctional center, and has displayed an unwillingness to comply with the conditions of parole, he or she would be deemed unsuitable for parole irrespective of the length of time incarcerated.
The decision of the parole board is final, unless there is an objection from either the minister of correctional services, the commissioner of corrections, or the inspecting judge of prisons. The inspecting judge of prisons is a judge tasked with the responsibility to assure that inmates’ rights of equality, human dignity, security, and life, as spelled out in the constitution, are protected. This is especially the case for children under 18 years of age. The inspecting judge also appoints people from the community as independent prison visitors, whose principal responsibility is to deal with complaints from prisoners.
Returning now to the objection to a parole board’s decision by either the minister of correctional services, the commissioner of corrections, or the inspecting judge of prisons, the case would be appealed to the Correctional Supervision and Parole Review Board. This board would consist of a judge, a director or deputy director from the prosecutor’s office, a member of the Department of Corrections, a person knowledgeable about correctional service, and two representatives from the public. They would entertain the appeal, and a simple majority can affirm or set aside the decision of the local parole board. As an aside, the Correctional Supervision and Parole Review Board is actually composed of members of the National Council for Correctional Service, who are simply sitting in this capacity as a review board. The National Council for Correctional Service is a statutory body that is mandated to aid the minister of Correctional Services in the area of policy development for the correctional system. Earlier it was mentioned that if a person was sentenced to life imprisonment, the minister of Correctional Services would determine the person’s eligibility for parole. It is the National Council for Correctional Service that advises the minister on such cases (Moses, 2012).
Finally, it should be noted that in 2012 the Department of Correctional Services began using electronic monitoring of parolees. Also in that year, the first halfway house for parolees was established in Gauteng province. It is a pilot program specifically designed for those parolees who are without a permanent address or lack support upon their release.
Noninstitutional Sanctions
In South Africa the preferred sanction appears to be imprisonment. Nevertheless, the following sanctions are designed to avoid incarcerating offenders in a correctional facility.
Correctional supervision or probation is an alternative to imprisonment. Whether an offender is suitable for this sanction is dependent on the person’s previous convictions, risk to the community, willingness to participate in various treatment programs, and the ability to monitor the offender in the community. Other requirements may involve requiring the offender to seek employment, perform community service, or pay compensation to victims; restricting the offender’s movement; prohibiting contact with certain people; and refraining from the use or abuse of alcohol or other drugs. Correctional officials would monitor the offender, which could be carried out by visits to the offender’s home or place of employment, and/or the offender may be required to visit the community corrections office. Correctional supervision orders are usually imposed for no more than three years.
Associated with the correctional supervision order are two other types of sentences: suspended sentence and postponed sentence. With a suspended sentence, as the term implies, the sentence is not executed as long as the offender agrees to certain conditions and does not violate those conditions. The usual conditions are the same as those for a person receiving a correctional supervision order. If the offender fails to comply with the conditions of a suspended sentence, that sentence could be revoked and the person would then serve the sentence in a correctional facility. A postponed sentence may be imposed with or without conditions. The person is released without a sentence and required to report to the court in the future. Neither the suspended nor postponed sentence can exceed a period of five years.
Committal to a treatment center is another noninstitutional sanction for those offenders who are suffering from alcohol or other drug abuse. This is issued when the court is of the opinion that the offender and the family would be best served by such an order. While detention in such a facility is for an indefinite period of time, the center must report a detention that is beyond a 12-month period.
With a community service order, the court determines the total number of hours and the period of time in which the requirement must be completed. Such an order requires a minimum of 50 hours of work, and the court may determine the minimum hours of service per month. The offender must be at least 15 years of age and willing to comply with the requirements of the order. Participants in such programs are monitored either by a probation officer or by NICRO.
Fines are often employed when the offense is minor. It is an order that the offender pay a sum of money to the state for the offense committed. In addition to the offense being minor, the offender must have the ability to pay the fine. Various statutes determine the amount of a fine. A court may defer payment of a fine, but this cannot exceed five years. Moreover, a court may order that a fine be paid in installments.
Compensation and restitution orders are similar to civil judgments. Compensation orders are imposed on the offender to pay for damages to or loss of property in the course of committing a crime or to compensate the victim of a crime. Restitution orders are a method of compensating a person who buys an item from a thief and upon learning that the item was stolen returns it to the original owner.
NICRO
Founded in 1910 as the Prisoner’s Aid Association, the National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) has long been concerned about issues associated with criminal justice reform, in particular human rights and prison reform. Located in all nine provinces, NICRO focuses its attention on providing services to both adults and children who are in conflict with the justice system. It is the only non-governmental organization that is attempting to provide a host of crime-prevention programs.
NICRO is noted for its work in the areas of diversion, noncustodial sentencing, and offender reintegration. With reference to diversion, it can facilitate community service and individual counseling for the person by avoiding a trial and a possible criminal record. The major distinction between a diversion order and a noncustodial sentence is that with the latter the offender was found guilty following a trial and was also considered at low risk of reoffending. The length of the sentence and the types of activities, such as community service and individual counseling, are essentially the same. Finally, offender reintegration is a service provided to inmates in prison. The aim of this program is to facilitate the inmate’s transition from prison back into the community. As such, this program begins before the inmate is released and continues for up to a year after release.
NICRO offers a variety of intervention programs. These include victim–offender mediation, individual counseling, intensive therapy, and community service (often with a charity or a local NGO). Other programs focus on the offender and family relationships, the offender as a parent, handling conflict, drug abuse and treatment programs, life skills, intimate partner violence, lifestyle choices, and preparing for and seeking employment. NICRO also offers programs that are specifically directed at youths and address such topics as staying in school, gender-based violence, crime, life skills, and high-risk behavior. Parents are encouraged to attend such programs.
Critical Issue
Many correctional systems in democratic countries suffer from the problem of overcrowding. This is a factor that is not new to South Africa. In fact, South African prisons were overcrowded before 1994, but unfortunately, they have become more overcrowded as a result of the country’s crime problem and the government’s decision to establish a more get-tough policy on crime and offenders. Moreover, young people are being sent to adult prisons because some juvenile prisons are experiencing severe overcrowding. This only enhances the difficulties confronting the adult correctional system.
South Africa has the highest rate of incarceration among countries in Africa and is ranked fourteenth in the world. It is estimated that about 85 correctional facilities are at times between 175 to 370 percent over capacity. Part of the problem is associated with the fact that South Africa has one of the highest pretrial detention rates in Africa. As previously mentioned, of the total prison population of more than 150,500, 45,700 had yet to be sentenced, of which 44,710 were male and 990 female.
It should be further noted that approximately one-third of those awaiting trial were granted bail but could not afford the cash bond for release. One approach that has been approved to reduce some of the overcrowding has been to reduce the sentences of some of the inmates. Another approach that was implemented in 2012 was the establishment of 26 remand detention facilities for those awaiting trial or the completion of their trial. In addition, specific units were created for remand detention in 109 of the correctional centers.
The issue of overcrowding has created a number of problems within the correctional facilities. For example, the ability to offer programs and teaching facilities has been reduced. Adequate healthcare is largely lacking. It should also be noted that approximately 90 percent of the natural deaths in a South African prison are the result of HIV/AIDS (Sarkin, 2008). Presently, about 43 percent of the inmates have tested positive for HIV.
Another characteristic of correctional systems in some democratic countries is the prevalence of gangs and the role that they play in controlling the environment within a prison on a daily basis. This is a very serious problem in South Africa’s prisons, where highly organized criminal gangs dominate a variety of aspects of prison life. As is the case with general overcrowding, gangs add to the tension within correctional facilities and contribute to the increased stress imposed on the staff and correctional officers.
Section 28 of the Constitution of the Republic of South Africa is devoted to the rights of children. Central to these rights is the welfare of the child. Moreover, a child is defined as anyone under the age of 18. Among the rights cited in section 28 that relate to the criminal justice system are access to social services, protection from neglect and abuse, alternative care when removed from the family, access to legal counsel, and not to be detained unless as a last resort.
Prior to the passage of the Child Justice Act (2008) and its implementation, young offenders under the age of 21 could receive a sentence that could be imposed on adults. Of course, tradition called for a reduction in the severity of the sanction. According to the Criminal Procedure Act (1977), courts were authorized to place any person under the age of 18 who was convicted of any offense either to supervision of a probation officer, to be placed in the custody of “any suitable person,” or to be sent to a reform school. These court orders could be enforced for up to two years and extended another two years, but they could not be extended once the offender reached the age of 18. For those sent to a reform school, an extension could continue until the offender reached the age of 21.
The treatment of young people in the criminal justice system became a significant issue with the adoption of the new constitution. A major reason for this was that prior to the end of apartheid, and even after its legal demise, the correctional approach toward young offenders was often incarceration. The new climate of opinion in the country favored a more rehabilitative and nurturing approach toward the young. The South Africa Law Commission conducted a study and issued a Report on Juvenile Justice in 2000. As a result of this work, the Child Justice Act (2008) became law and the principal statute regarding juvenile justice in the country. The act is designed to establish a criminal justice system for young people in conflict with the law. Essentially, the aim is to utilize a criminal process that is distinct from the regular criminal procedure that is designed for adults. The major goals of the Child Justice Act (2008) are to protect the rights of young people who are accused of criminal behavior and to transform the young person so that he or she might become a productive member of the community. This legislation is an illustration of ubuntu. Ubuntu was referred to earlier and means humaneness. It is a philosophy of hope that has deep roots in the culture of the native people and emphasizes compassion and respect for humanity and solidarity as a group. In the context of juvenile justice, the manner in which ubuntu is accomplished is through diversion and alternative sentencing programs. It is important to note that this legislation did not become operational until April 2010. As such, it is too early to evaluate whether it is accomplishing its objectives.
Responsibility of Juveniles
According to the Child Justice Act (2008), a child is defined as a person under the age of 18. The act further makes a distinction among three age groups. First, a child under the age of 10 is deemed not to have reached the age of criminal responsibility. As such, the child cannot be arrested or charged with an offense. In those instances when a child under the age of 10 has committed a criminal act, the child would be referred to a Children’s Court. Children’s Courts do not deal with criminal cases; they are special courts concerned with issues that impact children. As such, they focus on cases associated with children in need of care and protection. Second, children between the ages of 10 and 14 are also viewed as not having reached the age of criminal responsibility; however, they may be arrested if the state proves that they did have the capacity to know that their actions were criminal. Finally, children above the age of 14 to 18 years have reached the age of criminal responsibility and may be arrested.
Child Justice Courts
Child Justice Courts should not be confused with the Children’s Courts explained in the previous paragraph. A Child Justice Court is not a separate court in the judicial hierarchy; rather, it is any court that is handling a criminal case involving a child as a defendant. In that context, the procedures of the Child Justice Act (2008) would be utilized. In the event a child has been charged with an adult, the court would employ the procedural rules for the adult as explained in Criminal Procedure Act (1977).
Procedures
Once a child has been arrested, he or she must be evaluated by a probation officer before appearing in court. When a child has been arrested and is held in detention, a preliminary inquiry must be held within 48 hours. The preliminary inquiry is a pretrial procedure. The people involved in this inquiry include a magistrate, prosecutor, the accused, the accused’s parents or guardian, and a probation officer. A legal aid attorney may also be involved in this process. The purpose of this inquiry is to determine the best course of action for the accused based on the probation officer’s report, which is an evaluation of the child. If a parent of a child does not show up to this preliminary inquiry without cause, he or she can be fined or imprisoned for a period not to exceed three months. If the child has not been detained and fails to appear, the magistrate will issue a warrant for the person’s arrest.
During the preliminary inquiry, the magistrate must explain to the child the purpose of the hearing, indicate the nature of the allegations against him or her, inform the child of his or her rights, ask the child if he or she admits responsibility for the crime, and consider all information available, such as the probation officer’s report, previous convictions, and possible diversions. The magistrate is expected to encourage both the child and the parents or guardians to ask questions during this process. The prosecutor may elect to decline support for a diversion program and inform the child that the case will be transferred to a child justice court for trial.
If during the pretrial process the child admits responsibility for the offense, shows appropriate remorse for his or her actions, and consents to diversion, and if the prosecutor concurs, a diversion plan would be developed. Technically, diversion is not a noninstitutional sanction, because the person being diverted has not been tried and convicted in a court. Diversion is a pretrial order; it is designed to divert people away from the justice system and a criminal record. As such, this order is frequently utilized with young people. Usually such an order is determined by the prosecutor, but it may involve a magistrate or judge. The period of the diversion is tied to the nature of the offense committed. If the offense was minor, the period for a child under the age of 14 cannot exceed 12 months, and for children older than 14, no more than 24 months. For offenses that are categorized as serious and most serious, the period of diversion for a child under the age of 14 cannot exceed 24 months, and for children older than 14, no more than 48 months. Diversion often includes a number of features, such as an apology (oral or written), placement under supervision, individual counseling, the requirement to attend some type of schooling, service to the victim, community service, or compensation. Supervision of a probation officer could place restrictions on the child’s movement. Counseling programs may focus on anger management, life skills, or substance abuse. Schooling may involve a standard education or a vocational program. Finally, the community service requirement is usually for a one-to two-year period. Unfortunately, the paucity of diversion programs in most jurisdictions has hampered the development of this noninstitutional sanction. Moreover, the types of therapeutic options are usually limited to a generalized approach rather than a specialized program.
In the event diversion is not possible, the child justice court would proceed with a trial. Throughout the course of the trial, the major goals of the Child Justice Act (2008) would be paramount and influence the process. Those goals are to protect the rights of a young person who is accused of criminal behavior and to transform the young person so that they might become a productive member of the community. If diversion is not appropriate, the emphasis may shift to an alternative sentencing program.
Disposition
Section 69 of the Child Justice Act (2008) explains the objectives of sentencing. It involves encouraging the child to understand the consequences of his or her actions and to accept responsibility for the harm caused, emphasizing the importance of reintegrating the child into his or her family (when appropriate) and community, providing the necessary support to achieve reintegration, and employing imprisonment as a last resort.
Several of the noninstitutional sanctions are similar to those mentioned earlier for adults. The types of sentences available to young people include the following. A community-based sentence could be imposed that would utilize many of the features offered in the aforementioned diversion programs. A restorative justice sentence is another possibility that may involve family conferences or mediation with the victim of the offense. Correctional supervision or probation is another noninstitutional sanction that is available. A further option for the court is to suspend the sentence, with or without conditions, for a period not to exceed five years. Finally, instead of a fine, the court may permit some form of restitution or compensation.
Custodial sentences are also available but should be avoided if possible in light of the objectives of the Child Justice Act (2008). A sentence to compulsory residence in a child and youth care center focuses on the following factors. First, the offense must be serious in nature and have had a significant impact on the victim. Second, the young person must have a tendency toward harmful behavior and has not responded to noninstitutional sanctions in the past. Third, the aim of keeping the person out of a prison environment is important, while acknowledging the need to protect the community in light of the risk posed by this young person. Consideration must also be given to the age and maturity of the individual, the possible risk to other people at a child and youth care center, the level of security at the center under consideration in light of the risk assessment of the offender, and the availability to accommodate the young person.
It should be noted that there are a number of facilities that are referred to as child and youth care centers. Many of these organizations are designed to assist children who come from dysfunctional families and have been severely neglected. A few of the reform schools have been given the title of child and youth care centers. It is these facilities that are utilized when imposing a sentence of compulsory residence, for they already have the level of security necessary as determined by the risk assessments of the offenders and potential clients. Thus, there is a need to understand the distinction between the type and principal purpose of a child and youth care center.
According to section 76 of the Child Justice Act (2008), there are two types of sentences to a child and youth care center. One involves the compulsory sentence to a center that can be imposed for up to five years but cannot be extended once the person turns 21 years of age. When a young person commits a very serious crime, in which an adult would receive a sentence of more than 10 years’ imprisonment, the court can sentence the young person to a term of imprisonment after they have completed a period of time at a child and youth care center. Before the imprisonment portion of the sentence is actually imposed, the head of the child and youth care center would prepare a report for the court on the young person’s progress, which could lead either to the imposition of the prison sentence or a substitute sentence, or the release of the young person either with or without conditions.
Before imposing a sentence of imprisonment, the child justice court must consider several issues. They include the nature of the offense, in particular the harm caused and the young person’s culpability; the need to protect the community; the impact on the victim; the offender’s failure to respond to other alternative types of sanctions; and the continued desire not to place a young person in prison. It is important to note that at the time of sentencing no child under the age of 14 can be sentenced to prison. Depending on the nature of the offense, young people above the age of 14 can be sentenced for a period up to 25 years.
As mentioned earlier, the Child Justice Act (2008) did not become operational until April 2010. As such, it is too early to evaluate whether it is accomplishing its objectives (Gallinetti, 2009). Some information, however, has been gleaned from the first year of implementation, April 1, 2010, to March 31, 2011. For example, the National Prosecuting Authority announced that 9,325 children had been diverted from the justice system. There were a total of 804 community-based sentences; restorative justice sentences numbered 137; and 34 young offenders had a fine imposed on them. A total of 804 children received a sentence to correctional supervision or probation.
With reference to custodial sentences, 110 young people were admitted to a child and youth care center. Four reform schools were utilized for this purpose. Finally, the Department of Correctional Services noted a decline in the number of children serving a prison sentence. In April 2010, there were 717 young people incarcerated. That number was reduced to 536 by March 2011.
It was also noted that there were insufficient resources and budgets to implement fully the Child Justice Act (2008). This should come as no surprise, as limited budgets are a problem confronting most public-sector services in South Africa in general and those of the various components of its criminal justice system in particular (Department of Justice and Constitutional Development, 2011).
More recent data provides an additional picture of juvenile justice in South Africa. According to the 2012–2013 national statistics, one-third of the country’s prison population is made up of young people under the age of 25, that is, 45,842 out of the roughly 150,500 total. Of these, 26,349 had been sentenced, while 19,493 were detained awaiting trial (Department of Correctional Services).
From the Child Justice Act’s (2008) inception and implementation, the authorities acknowledged that in order for the Act to be successful at protecting the rights of young people and promoting hope and respect for self and others, a number of government organizations would have to enter into a cooperative and collaborative strategy. Among those agencies singled out for particular attention were: the Department of Justice and Constitutional Development, the South Africa Police Services, the Department of Social Development, the Department of Correctional Services, the Department of Health, the Department of Basic Education, the National Prosecuting Authority, and the Department of Women, Children and People with Disabilities. Collectively, these agencies form the Intersectional Committee on Child Justice.
The Committee reported that the nature of sentencing since the Act enhanced the sentencing options, in particular the noncustodial alternatives. To illustrate, the number of community-based sentences went from 60 in 2010–2011 to 759 in 2011–2012. Obviously, courts were comfortable with utilizing this noncustodial option. The number of restorative justice sanctions also increased from 137 in 2010–2011 to 405 in 2011–2012. The goal of reconciliation rather than adversarial confrontation appeared to work in some instances. There was not a significant increase in the use of fines, however: 34 in 2010–2011 compared to 37 in 2011–2012. Correctional supervision orders experienced a significant drop from 804 in 2010–2011 to 302 in 2011–2012. Some are of the opinion that the reduction in this number might be associated with a greater reliance on diversion programs. The number of diversion orders, however, also declined significantly from 16,462 in 2010–2011 to 9,192 in 2011–2012. Finally, while the compulsory residence in a child and youth care center increased from 110 in 2010–2011 to 353 in 2011–2012, the number of young people sentenced to imprisonment dropped from 536 in 2010–2011 to 94 in 2011–2012 (2nd Annual Report on the Intersectional Implementation of the Child Justice Act, 2011–2012).
It should also be noted that the Intersectional Committee identified two critical and troubling problems in their report. They indicated that there was an inadequate number of psychiatrists and psychologists in the public sector to handle the number of young people who needed treatment. Moreover, on the technical side, a uniform information system is not being employed to collect data on those people who have been evaluated for criminal tendencies.
Critical Issues
In the South African context, what is very important to highlight is the environment in which children at risk are confronted on a daily basis. The level of crime in South Africa is a problem, but even more significant is the level of violence. It is important to note that the country is one of the most violent in the world. Its premature mortality rate has been caused by homicide, traffic accidents, suicide, and AIDS.
Social scientists have argued that this problem of crime and violence cannot be left solely to the police; rather, there is a need to take an ecological approach that considers factors that place young people at risk of being a victim or becoming a perpetrator. The creation of the Intersectional Committee on Child Justice might be the vehicle that can facilitate a new approach for youth at risk in the country.
Among the factors that need greater attention are the family, the schools, and the community in which the young people at risk are associated. The family is a significant source of violence. There is early childhood physical abuse, especially of boys. The young are exposed to intimate partner violence. They are also subjected to gang violence, and some become involved in such activity as early as 11 years of age. There is a good deal of malnutrition. Excessive alcohol and other drug consumption in the family is another problem, in particular the maternal prenatal use of tobacco, cocaine, and methamphetamines. As such, it comes as no surprise that the anti-social behavior of some of the young is often associated with fetal alcohol syndrome and attention deficit hyperactivity disorder.
Even after the end of apartheid, the educational system in the poorer areas of the country remains dysfunctional. Schools are often chaotic with alcohol, other drugs, and gangs prevalent on or near the campuses. Teachers spend half of their time functioning as social workers or police officers rather than as educators. In light of those conditions, it is not surprising to find that the dropout rates are high. Moreover, although it is illegal, corporal punishment is still employed in some schools. Thus, the child may leave a violent home only to come to a violent school.
Finally, the community in which the home and school are situated is often disorganized, with a good deal of inequality throughout the neighborhood. These segregated neighborhoods are often terrorized by youth crimes and gang violence. The high levels of alcohol and other drug use contributes further to the dysfunction. Moreover, the significant number of students who drop out of school only adds to the level of poverty, as they are not prepared to enter the workforce.
All of these factors have contributed to the fact that one-third of all people incarcerated in the South African correctional system are young people. Social scientists have maintained that a more concerted effort at improving the process of human development is essential in addressing these problems. The ultimate need is for early intervention with the young and their families (see Ward, van der Merwe, and Dawes, 2012).
This chapter has offered an introduction to the South African criminal justice system. The major components of the system—the police, judiciary, law, corrections, and juvenile justice—were surveyed, along with an overview of the political system. The organization and administration were described, the various roles of the practitioners were explained, the legal process was examined, and some of the critical issues facing the system were identified.
As a backdrop to understanding the current criminal justice system, the reader was introduced to the policies of apartheid. It was noted that several discriminatory policies existed before the emergence of apartheid. As such, the Afrikaner government cannot be the only source for attempting to perpetuate inequality in the country. The history of South Africa’s apartheid regime has a number of striking similarities to practices that were once prevalent in the United States. Moreover, the leadership of the African National Congress often gained some sustenance from the efforts and successes of the civil rights movement in the United States.
With the demise of apartheid in 1994, a good deal of worldwide attention has been directed at South Africa as it attempts to build a democratic system of governance. There are a number of features of which South Africans can be justly proud as they have transitioned from the apartheid regime to a democracy. These include the establishment of a constitutional democracy, the creation of a constitutional court, and the development of various public-sector plans to correct the gross injustices that the majority of South Africans were forced to confront on a daily basis. Among these injustices were inadequate housing; poor infrastructure services like fresh water, sewage treatment, and electricity; substandard schools; limited and inadequate healthcare facilities; a paucity of jobs; and inadequate and at times nonexistent law enforcement and order maintenance protection.
Unfortunately, South Africa was and continues to be a fairly violent society with seriously high levels of brutal criminal offenses. People have lived in fear because they either have been victims or are concerned about their prospects of becoming a victim of crime. It is very important to note that this has not been a particularly white or black issue. Blacks are being victimized much more than whites. In one sense, it is a class issue in that both white and black members of the middle class can afford to hire private security firms to erect barriers for their safety. A majority of South Africans, however, are poor and cannot afford these devices.
In 1994, the new democratic government’s goal was to establish a more humane society for all, and efforts continue to be made in that regard. Because of the seriousness of the crime problem, however, people demanded that the government establish a get-tough policy on crime and criminals, which they began to implement in the late 1990s. The problem of crime in general and violent crime in particular is associated with a variety of factors. Poor living conditions exist for far too many people, although the government continues to address this issue by building better housing. The educational system in black communities is often dysfunctional. Another factor is the paucity of jobs and training for jobs. A troubling issue confronting society in general and crime issues in particular is the attitude toward women, including cultural issues often related to patriarchal traditions that have hindered the progress of women and enhanced the likelihood of them being a victim of crime. Finally, an issue that has been mentioned throughout this chapter is the limited budget to address all social issues and the needs of the criminal justice system. Thus, all of these factors have influenced the degree to which the justice system is overwhelmed by the amount of crime and the number of incarcerated people.
It will take generations to correct the inequities and problems associated with South Africa. At issue and of particular concern is whether the poor will remain patient as the government in general and the ANC in particular try to address these problems. Clearly, the ideal of a more humane society has not been achieved as yet, but it remains an important goal of this new democracy.
