Non-criminal dispute resolution in South Africa’s criminal justice system: Proposals for reform

• Date: 04 March 2021
• DOI: https://doi.org/10.47348/SACJ/v33/i3a7
• Author: Somaru, N.
• Published date: 04 March 2021
• Pages: 645-668

Non-criminal dispute resolution

in South Africa’s criminal justice

system: Proposals for reform

NAVILLA SOMARU* AND CHRISTA RAUTENBACH**

ABSTRACT

The National Prosecut ing Authority has iss ued a comprehensive document

containing polic y directives that are avai lable only to prosecutors. Th is

document makes provision for non-cr iminal dispute resolution mechanism s

in the form of diversions and in formal mediations where t he offender is an

adult. It seems as if a large numb er of less severe cases are disp osed of in

this way every year. The dire ctives are not in the public domai n, and their

scope and application are shrouded in a cloud of sec recy. This contribution

analyses the altern ative dispute mechanisms of d iversion and informal

mediation available to prosecutors, wh ich are referred to as non-cr iminal

dispute resolution mechanism s, with the aim to propose ways to ef fect

reform in this area .

1 Introduction

It is trite that South African crime gures, par ticularly those on violent

crime, rank among the highest i n the world.1 One effect of the high

crime rate is the fact that the country’s courts face huge caseloads,

which leads to backlogs.2 The country’s adversarial legal system

* BA Law, LLB (KZN), LLM (N WU). This contr ibution is based on N Som aru Hindu

Perspective s on Alternative Dispute Reso lution: Lessons for South African Crimin al

Law LLM (Potchefstro om) (2017).

** B Iuris (cum laude), LLB (cum laude), LLM, LLD (former PU for CHE). Professor,

Faculty of Law, North-West Universit y (Potchefstroom). I am indebted to t he

Alexander von Humboldt Fou ndation for its generous funding, which e nabled me to

complete the research at t he Max Planck Institute for Comparat ive and International

Private Law in Hambu rg. I remain responsible for my viewpoints and m istakes.

1 SAP S annual crime s tatistics for 2018/19, available at https://www.saps.gov.za/

services/crimestats.php, accessed on 8 November 2019.

2 Accordi ng to the National Prose cuting Authorit y, a backlog case refers to a case

that has been on the D istrict Court’s roll for more than si x months; on the Regional

Court’s roll for longer tha n nine months; and on the High Cour t’s roll for longer than

one year. Regarding the stat istics as per the National Prose cuting Authority of South

Africa Annual Report 2018/19 (NPA Rep ort 2018/19) 54–55, avail able at http s://

www.npa.gov.za/content/annual-reports/ndpp-annual-report-2018-19, accessed on

8November 2019, in the 387 court cen tres in the countr y an outstanding caseload

of 179033 cases was carried into t he 2017/18 nancial year. This number inc reased

to 181912 for the 2 018/19 nancial year. A decline in the n alisation of case s

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compounds the situation even further, which causes lengthy and

costly legal processes.3 A ny delay in bringing a matter to trial is of

particular concern as ever y accused person has a right to a speedy trial

in terms of the Constitution of the Republic of South Africa, 1996 (the

Constitution).4 On the other hand, everyone has a right to freedom and

security,5 which places a positive obligation on the state to protect this

right as a matter of national secur ity. National security as set out the

Constitution,6

… must reect the resolve of South Africans, as individuals and as a nation,

to live as equals, to live in peace and harmony, to be free from fear and want

and to seek a better life.

Some authors have argued that the high crime rate is a t hreat to

national security,7 which undermines constitutional democracy in

South Africa.8 National security is c urrently the collective responsibility

of everyone involved in the criminal justice system. The latter consists

of the judicial system,9 the Depart ment of Justice and Correctional

Ser vic es ( DoJ& CS),10 social services,11 the police service (SAPS),12

resulted in a growi ng backlog of 3699 cas es which is an increa se of 12.2 per cent

from the previous ter m. Also, the stat istics relate only to ca ses where there was a

successful ar rest of the offender and the ultimate en rolment by a prosecutor of that

case docket on the cour t roll. It does not reect t he entirety of a ll crimin al cases

reported in the co untry.

3 N Soma ru Hindu Persp ectives on Alternative Disput e Resolution: Lessons for South

African Criminal L aw LLM (Potchefstroom) (201 7) 7.

4 Sec tion 35(3)(d) of the Constitution st ates that every accus ed person has the r ight

to a fair trial, wh ich includes the right to h ave his or her trial beg in and conclude

without unnecess ary delay.

5 Sec tion 11 of the Constitutio n.

6 Sec tion 198(a) of the Constitution.

7 LE Pie naar Seriou s Crime as a National Security Thr eat in South Africa since 1994

(2014) 205 performed a detailed s tudy in which he came to t he conclusion that

serious crime i s one of the main threats to South A frica’s national secu rity.

8 Th is fact is recognised in the NPA Policy; see the Pre face.

9 See ss 165 –180 of the Constitution .

10 In 2014 the former Depart ment of Justice and Cons titutional Development a nd

the Departm ent of Correctiona l Services merge d to form the current D oJ & CS.

Correctiona l services are reg ulated in terms o f the Correction al Services Act 111 of

1998.

11 Social ser vices are regulate d by a wide range of legislation an d policy document s;

see the Depart ment of Social Development website, available at htt ps://www.gov.za/

about-sa/social-development, accessed on 8 December 2019.

12 The SAPS is a secu rity serv ice established in ter ms of s 199 of the Constit ution. It

operates in term s of ss 205–208 o f the Constitut ion, and the South Af rican Police

Service Act 68 of 1995. T he Preamble to the Act sets out the need for a pol ice service

to ‘ensure the safety a nd security of all persons and p roperty as guaranteed’ by t he

human rights provi sions in the Constitution.

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