Minister Lamola’s Opening and Welcome Address: Strengthening the Integrated Criminal Justice System and Reviewing the Criminal Procedure Act, 1977 to keep our people safe and secure Conference, Birchwood, 27 February 2024
It is a great privilege for me, to be here today to wish you all a Good Morning and to extend a special Welcome to
Deputy President Paul Mashatile
Cabinet Ministers present today
Deputy Minister of Justice and Constitutional Development: Mr John Jeffery,
and Deputy Minister of Correctional Services Inkosi Patekile Holomisa , Ahh Dilizintaba!
MEC for Gauteng Community Safety: Ms Faith Mazibuko
All our members of parliament present today
Members of the Judiciary present today
Former Judge President of the Mpumalanga Division of the High Court: Judge
President Malesela Francis Legodi
Judge President of the Mpumalanga Division of the High Court: Judge
President SS Mphahlele
Acting Deputy Judge President of the KwaZulu-Natal Division of the High Court:
Acting Deputy Judge President MBS Masipa
British High Commissioner to South Africa: Mr Antony Phillipson
Director-General: Department of Justice and Constitutional Development: Adv
Doctor Mashabane
National Director of Public Prosecutions: Adv Shamila Batohi
National Commissioner of the Department of Correctional Services: Mr
Makgothi Samuel Thobakgale
National Commissioner of the South African Police Service: Lieutenant General
Sehlahle F Masemola
National Head: Directorate for Priority Crime Investigation: Dr (Adv) Lieutenant
General Godfrey Lebeya
Chairperson of the Global Coalition to Fight Financial Crime: Adv Xolisile
Khanyile
Senior Leadership of Chapters 9 and 10 Institutions
Vice Chairperson of the South African Law Reform Commission, Prof Wesahl
Domingo and Members of the SA Law Reform Commission
Chairperson of the South African Human Rights Commission: Mr Chris Nissen
and Commissioners from the South African Human Rights Commission present
today
Members of the Legal Profession
Delegates from Academic and Research Institutions, Civil Society Organizations present today
Introduction
“….Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.”
(Martin Luther King Jr)
On behalf of the Ministry of Justice and Correctional Services, I extend a warm welcome to all the dedicated individuals who have generously given their time to join us on our unwavering journey to safeguard and protect the people of South Africa.
As we navigate through the post-apartheid era, our unwavering fight against poverty persists, driven by our determination to create opportunities for the advancement and prosperity of the people of South Africa.
The governing party, the African National Congress in 2024 elections manifesto calls on to defend democracy and advance freedom by keeping our homes and streets safe and protecting our borders.
It creates a criminal justice that
- Takes a comprehensive approach to fighting crime through the Integrated Violence and Crime Prevention Strategy.
- Modernises policing with more frontline police officers.
- Highlights the critical role of communities in preventing crime and gender-based violence through adequate resourcing of Community Policing Forums.
- Develops capabilities to combat cybercrime, essential infrastructure crimes, illegal firearms, gang violence, crime syndicates, human and drug trafficking, and corruption.
- Provides additional capacity to the Hawks to tackle organised crime.
- Implements a data-driven approach to target violent crime hotspots and direct police resources and personnel to areas with the highest crime rates.
- Strengthens the justice system, including the National Prosecuting Authority (NPA), review the Criminal Procedures Act, reducing case backlogs and delays, support the Legal Aid Board to provide fair access to justice, introduce technology to make court procedures more efficient and accessible, and strengthen the protection of whistleblowers.
- Ensures effective and humane incarceration of inmates, and, as part of a restorative justice approach, promote the rehabilitation and social reintegration of offenders.
Our journey to transform the entirety of the justice system continued when we manned the South African Law reform Commission to review the Civil Procedure Act project number?, the Insolvency Act, the repeal of the apartheid era legislation and the Criminal Procedure Act which is today the subject of this conference as part of this transformative journey.
A brief background on the review of our criminal justice system includes amongst others, work done by the SA Law Reform Commission in respect amongst others, of the law of evidence in civil and criminal proceedings. For instance A review of the law of evidence was included in the SALRC’s research programme soon after its establishment in 1973. The Commission’s original intention was to codify the South African law of evidence in its entirety and to consolidate it in one Act. However, the Commission gradually realised the enormity of such an undertaking and abandoned the codification of the law of evidence. The Commission decided rather to ascertain which aspects of the law of evidence were unsatisfactory or did not meet current needs, and to formulate suggestions for their reform.
In 2003 in a preliminary study by the SALRC, Professor PJ Schwikkard identified several areas of law for possible reform and outlined these in Committee Paper 1024 titled Project 126 Review of the Law of Evidence (2003). The areas under discussion included the following:
- the principle of relevance;
- the approach to hearsay evidence; and
- various structural features of the court system (that is, the limited role of lay assessors and the adversarial nature of proceedings.)
Paper 1024 recognised that the function of the law of evidence differs in civil and criminal trials and that there are different policy considerations underlying each. Whereas civil trials are intended to resolve disputes to order relationships, criminal evidence and procedure is ‘an applied branch of moral and political philosophy’ in which the rights and responsibilities of citizenship are articulated.
As a point of policy therefore, the paper concluded that a more cautious approach should be taken to the admissibility of evidence in criminal trials.
That preliminary study was followed by Issue Paper 26 Review of the Law of Evidence and Discussion Paper 113 Review of the Law of Evidence (Hearsay and Relevance). Both of these papers were published in 2008.
Issue Paper 26 identified several issues in theory and in practice for further investigation and review. These included issues related to the concepts of real evidence, documentary evidence and computer-generated evidence.
As we build upon that foundation, it is crucial to address the pressing issues of crime and violence in South Africa. The urgency to progressively and effectively expedite the delivery of criminal justice, and to promote constitutional imperatives in the justice system remain sacrosanct.
One of the constitutional imperatives derived from our historic Constitution, bestowed upon us by our Founding Fathers, is the transformation of our criminal justice system. We must acknowledge the damage inflicted upon our society by the brutal regime we overcame, while also ensuring the safety and security of every individual in our land.
We must also be able to respond to the criticism that criminal have more rights than the victims, trust in the system when victims see their rights being protected and justice served.
Our communities live in constant fear, plagued by gangsterism, armed robberies, rape, and murder. Women and children are particularly vulnerable to the violence inflicted upon them by men.
Furthermore, our economy suffers due to damaged infrastructure, extortion at construction sites, corruption, the growth of illicit activities, and the high costs of securing businesses and assets.
Despite 30 years of freedom, many South Africans still face the socio-economic challenges of poverty, unemployment, and inequality. They continue to endure deprivation, lacking access to the necessary resources, goods, and services for a sustainable livelihood.
As we approach the 30th anniversary of our democracy, it is an opportune time for us, as a diverse nation, to reflect on our criminal justice system in light of the fundamental rights and freedoms enshrined in our Constitution.
As early as 1996, the then Minister of Justice , the Late Hon. Dullah Omar, and the then Police Minister embarked on the transformation project, resulting in the National Crime Prevention Strategy aimed at moving the criminal justice system from a narrow focus on repressive crime control to one that recognises that crime does not occur in a vacuum but emerges, in most instances, from societal ills.
The function or object of the criminal justice system is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society.
The modernisation of the relevant criminal justice services, from integration of data, to efficiency of the forensic services, to use of technology to deal with criminal investigations, and to even hybrid witness appearance in order to protect victims, and to so many other areas of our justice system which this Conference will have to address.
Our entire system, from crime reporting, to crime investigation and ultimately to the judicial intervention and correctional services, we have to have an integrated repository of information to ensure that efficiency is attained.
I pause to remind that in our country, we have currently cases that lasts more than half a decade in the trial stage, long even before the institution of appeal proceedings. Think of the effort if the stress this places on victims and witnesses and society in general. It is unsustainable.
According to the online journal Legalscoops, published on 22 May 2022, the best legal systems in the world are to be determined using the criteria including considerations of the rule of law, timeframes for judicial decisions, the efficiency of judicial interpretations (that is legal certainty), judicial officer availability, availability of court rooms etc.
It was no longer sufficient to seek to control crime without endeavouring to prevent crime, and of course, this meant ensuring that we built a criminal justice system that is victim-centric, while, through a restorative justice approach, seeks to rehabilitate rather than to cut-off avenues away from crime, for offenders.
The time has come for us to reimagine and reassess what we have inherited.
This is an urgent path that we must embark upon. It is a path that began with the dawn of democracy in South Africa and the adoption of our Constitution, which called upon us to transform a criminal justice system deeply rooted in our colonial past into one that acknowledges the harm inflicted upon our society by the oppressive regime we triumphed over.
However, we must also strike a balance by ensuring the safety and security of every individual in our nation.
For many years, our guiding principle has been to ensure that no innocent person is unjustly persecuted by the state. In cases where such injustice is found, our system must have the ability to self-correct.
The State possesses immense power, and when an individual has wronged society, we must delicately utilize the state to address these wrongs on behalf of us all. This is our duty to the community as a whole.
The other end of the scale is perpetrators who are now rehabilitated are also being told they cannot work on account of a criminal record. This is a matter we have tried to address over the years in a systematic way. The second issues which arise is the impact of crime on the victim.
A victim-centered approach in our criminal justice system is crucial for several reasons. Firstly, it recognizes the importance of prioritizing the well-being and rights of victims. Victims of crime often experience significant physical, emotional, and psychological trauma, and it is our responsibility to ensure that they are treated with compassion, empathy, and respect.
By adopting a victim-centered approach, we can create an environment where victims feel supported and empowered throughout the entire process. This means providing them with information about their rights, the legal process, and available support services. It also means involving them in decision-making processes that directly affect their case, such as plea bargains or sentencing.
Furthermore, a victim-centered approach acknowledges that victims have unique needs and experiences that must be addressed. This includes providing them with access to counseling, therapy, and other support services to help them cope with the aftermath of the crime. It also means taking into account any specific vulnerabilities or circumstances that may impact their ability to participate fully in the legal proceedings, such as language barriers, disabilities, or cultural differences.
By prioritizing the well-being and rights of victims, we can also help to restore their sense of dignity and control. Victims often feel a loss of power and agency as a result of the crime committed against them. By actively involving them in the process and ensuring their voices are heard, we can help them regain a sense of empowerment and begin the process of healing and rebuilding their lives.
A victim-centered approach in our criminal justice system is imperative. It not only ensures that victims are respected, supported, and empowered, but it also helps to uphold their dignity and rights. By working together to prioritize the well-being of victims, we can create a more just and compassionate system that truly serves the needs of those who have suffered harm.
The National Crime Prevention Strategy of 1996 moved the criminal justice system from a myopic focus on crime control to one that recognises that crime did not occur in a vacuum but emerges, in most instances, from societal ills.
It was no longer sufficient to seek to control crime without endeavouring to prevent crime, and of course, this meant ensuring that we built a criminal justice system that is victim-centric, while, through a restorative justice approach, seeks to rehabilitate rather than to cut-off avenues away from crime, for offenders.
It is a delicate balance, indeed, that we have sought to achieve through many initiatives such as the Justice, Crime Prevention and Security Seven-Point Plan, the 2016 White Paper on Safety and Security, and the more recent 2022 Integrated Crime and Violence Prevention Strategy.
The path has not been a smooth one. We have stumbled and failed in places. The 2021 July Civil Unrest and the observations made by the Panel of Experts make this clear. As do the latest crime-rate stats and the StatsSA Victims of Crime surveys.
But so, too, there have been notable successes which we will hear about today as the various panels delve into a critical assessment of the work government has done to meet the objectives of the Integrated Criminal Justice Strategy, the JCPS Seven-Point Plan and other such initiatives and strategies.
In our assessment, we must remain cognisant that crime and security issues are not unique to South Africa but is a concern of all other nations. We must look at what is being done to make criminal justice systems efficient and effective in other jurisdictions, to learn and to adopt that which best suits our particular context so that we realise a South African criminal justice system that is responsive, effective and modernised.
We are thankful that experts in the international and regional arenas will be sharing their observations and thoughts on key challenges facing criminal justice systems in today’s context and sharing ideas on how best to address these.
As government, we have a sacred duty to keep our people safe and secure. As Bernard B Kerick said, and I quote:
“There is no greater threat to a free and democratic nation than a government that fails to protect its citizen's freedom and liberty as aggressively as it pursues justice.”
(Bernard B Kerik, From Jailer to Jailed: My Journey from Correction and Police Commissioner to Inmate
Our struggle to achieve democracy was the struggle of many. The struggle to protect and to grow our democracy is the struggle of ALL.
We must work together, government and society and be tireless in our endeavours to keep our people safe and secure and in so doing keeping our democracy strong and vibrant. A criminal justice system that is victim-centric, that recognises the role that societal ills plays in engendering crime, but is in essence, intended to keep people safe and secure, is not a government-only, system. It requires the society within which it operates, to work with government in community initiatives, and importantly, to provide solution-based critiques of government’s criminal justice initiatives and its performance in implementing such.
The bedrock of our criminal justice system is the Criminal Procedure Act of 1977. Despite many amendments through the years, it remains largely untransformed from an Apartheid era instrument, to one that best meets the fundamental principles of our new democracy.
In 2020, I tasked the South African Law Reform Commission with reviewing and reforming the criminal justice system. The first project undertaken in this endeavour, and correctly so, is the Criminal Procedure Reform Project.
Much research and investigation has already taken place and we will be hearing about the work done over the next few days as we explore concepts such as Alternative Dispute Resolution in criminal matters; the use of lethal force in effecting arrests, the bail provisions and pre-trial procedures; and, processes to ensure the right to a fair and speedy trial is upheld.
Our engagement with and discussions on the thematic areas that will be presented will offer critical insights and recommendations to inform the work being done on the Criminal Procedure Reform.
This is a project that will require the constructive engagement of society and those institutions that play a key role in the criminal justice system.
There is much to be done over the coming three days.
We must critically reflect on the JCPS Seven-Point Plan and the progress on its implementation and we must engage with the preliminary findings and proposals on the Review of the Criminal Procedure Act investigations with an understanding of the broader criminal justice system review that is taking place.
I am looking forward for robust debates and discussions as participants from academia, civil society and government engage with the presentations delivered by experts over the coming days. And am hopeful, that these discussions and debates will culminate in concrete recommendations that will take us forward in achieving the criminal justice system that achieves safety and security for all.
I’ll end off by Welcoming you all once again and wishing you a productive, enlightening and successful conference that will re-invigorate and strengthen our criminal justice system.
Thank You
