On the eve of his retirement, one of the country’s best known prosecutors has released a report calling for the scrapping of the lengthy recesses currently found in South Africa’s high courts.
”A proper study of the current recess system in the South African context of overcrowded prisons, accommodation shortages, court delays and criminal case backlogs which have assumed serious proportions, shows that recesses do not belong in our overburdened criminal justice system,” wrote advocate Frank Kahn, the lead author of the 156 page report, in the foreword.
Kahn said on Thursday that Justice Minister Penuell Maduna and National Director of Public Prosecutions Bulelani Ngcuka had sanctioned the formal investigation into the recess system.
”It took us — myself and advocate Tessa Heunis — about three to four months to complete a very exhaustive report covering the history of the high courts in SA in all provinces from 1828 to the present,” said Khan.
The historico-legal report also studied 26 different legal systems worldwide.
According to Khan the preliminary report suggested three models whereby the current recess could be altered to enhance productivity in the high courts on a cost effective basis.
The three proposed models were:
the staggering of the recesses, excluding the summer recess, without appointing new judges;
the staggering of recesses, together with appointing additional judges, allocated exclusively to the criminal pool. This would improve productivity substantially, as well as having the benefits of the first solution;
the staggering of recesses with a new tier of judges who would only have a recess of seven weeks a year and no extended leave, and who would hear criminal trials exclusively. This would have a dramatic impact on productivity and be extremely cost effective.
”It is abundantly clear that there is simply no place for a recess in the criminal justice system of South Africa: the question is no longer whether it should go, but how, and, more importantly, how soon,” said Kahn.
Kahn emphasised that the proposals take nothing away from judges and retained all existing rights of current judges.
”If anything it improves the lot of judges by making their recess time more flexible,” he said, adding that the recess systems of the Constitutional Court and Supreme Court of Appeal were in line with the rest of the world.
He said the preliminary report would be circulated to all interested parties for comment before a final report was issued.
Khan said depending on what model was adopted, legislative amendments might be necessary.
”The bottom line is that whatever is chosen, the courts will be open and accessible to the lawyers in the republic throughout the year, with the exception of the three weeks over the festive season,” he said.
Khan felt quietly optimistic about whether the judiciary would accept the report’s proposals.
Asked about his pending retirement after 40 years of dedicated service to the legal profession, Khan said he would be ”closing a chapter, but not the book”.
”I feel a person should also do more than one thing in life and have given myself sufficient time to meet a new challenge in my life.”
Asked what this was, Khan said to watch this space while he considered his options.
When appointed, Kahn was the country’s youngest ever deputy attorney general in 1975, at the age of 35, and during the course his career appeared in many celebrated cases and commissions. These included heading up the investigation into the Stock Exchange in 1991 which ended in successful prosecutions and the recovery of more than R20-million.
Saying that his ”passion” was commercial work, Kahn also said he was instrumental in setting up the first sexual offences court in Wynberg, as well as the Office for Serious Economic Offences.
He was the architect of the country’s first national drug master plan and current chairman of the Central Drug Authority. Asked whether he would consider taking up a judgeship, Kahn smilingly said: ”I’m too young and energetic to keep the hours
which the judiciary keep at present.” – Sapa