Louise Stack and Paula Soggot
South Africa’s criminal justice system is in crisis. The crime rate is high and the prisons are overcrowded. The prosecution rate is low and courts are backlogged. The number of cases being prosecuted has been dropping since the mid-1980s.
The declining number of cases prosecuted indicates that case backlogs are not due to an increase in the crime rate. Rather, they are due to shortcomings in the criminal justice system itself.
In a European Union-funded study of the reasons for the gaps between policy and implementation in justice, many shortcomings were found.
There is a failure to prioritise effectively among policy options and to cost policies. Justice policy has been too comprehensive, attempting to transform every aspect of the justice system simultaneously without due regard for implementation capacity or the long-term sustainability of new policy initiatives. The Department of Justice has passed more than 70 pieces of legislation since 1994. This has strained resources to the maximum and led to disappointed expectations of new policies.
There is a failure to prioritise and fund the justice function adequately. Even if all the problems in the police service were to be ironed out, the courts would remain an obstacle in processing cases. But the percentage of the national budget planned to go towards justice during the course of the medium term expenditure framework is set to drop.
There is a lack of financial management skills in the department. Budgets and finances are handled in hundreds of courts throughout the country and the need for financial management skills is dire. The lack of sound financial management is one of the primary reasons for the department’s parlous state of financial affairs. So, while justice desperately needs to be made a higher priority and given additional funding, it can hardly expect this in its current state of financial disarray.
There are inadequate human resources. The most seriously hit areas are prosecutors and administrative officers and clerks. Experienced prosecutors are leaving to become magistrates, largely as a result of the vast salary discrepancies between them. The number of administrative officers and clerks working for the department declined from 6 897 in March 1996 to 4 101 in July last year.
Administrative officers and clerks who remain are nonetheless being expected to take on more and more functions in relation to new policies being adopted. This is resulting in high levels of stress and demoralisation.
There is slow progress towards representivity, combined with problems in implementing affirmative action. Between March 1996 and July last year the percentage of white judges dropped from 90% to 74%. The Bench is therefore still a far cry from being representative.
The percentage of white magistrates dropped from 67% to 56%, white prosecutors from 54% to 36%, white state advocates from 82% to 64%, and the proportion of whites in the management echelon of the department from 61% to 54%.
Affirmative action is clearly necessary, given the skewed representation in the department. But getting the numbers right is not enough. Where people are appointed to improve representivity despite inexperience, if the inexperience is not addressed through proper mentoring and training, service delivery will continue to suffer.
There is a diversity of authority centres in justice and a lack of communication and coordination among them. Interdepartmental committees do not appear to be functioning effectively from the highest to the lowest levels. Criminal justice departments continue to operate in relative isolation from each other. Communication between police and prosecutors is diminishing, as is that between judicial officers and prison authorities. Police and prison heads are not always aware of new justice policies or what the department’s objectives in relation to these policies are.
Within justice, too, authority is dispersed among a number of different bodies, including the Judicial Services Commission, the Magistrates’ Commission, the National Prosecuting Authority, the Legal Aid Board and the Justice College. Communication and coordination among these authorities occurs on an ad hoc basis. Even among directorates within the justice department, communication and coordination appear to be defective.
There are disrupted court management systems. While chief magistrates have traditionally managed magistrate’s courts and communicated directly with the national office, the responsibility for court management is being shifted from judicial to administrative officers, court processes are being automated, and regional offices, having been created, are currently being reevaluated.
There is a failure to appreciate and build on successful local-court initiatives to improve case flow and on successful models of community involvement and participation in support of the judicial function.
A focus on the gaps between justice policy and its implementation tends to highlight areas of underperformance. The intention of the study was to identify areas where improvement would make a significant impact on policy implementation rather than to underestimate the magnitude of the exercise of transforming the justice system or detract from the far-sightedness of many of the new policy initiatives that have been adopted.
The full research report is due to be released by the Centre for Policy Studies in June this year