The crisis of criminal justice in South Africa

• Author: Cameron, E.
• Date: 17 March 2020
• Pages: 32-71
• Published date: 17 March 2020

32

THE CRISIS OF CRIMINAL JUSTICE IN

SOUTH AFRICA*

EDW IN CA M ERON

Retired Justice of the Con stitutional Court of S outh Africa

This arti cle investigates th e crisis of cr iminal justice i n South Afric a. The arti cle

demonstrates thro ugh statistical an alysis how South Af rica’s prisons are n ot places of

rehabilitation bu t overcrowded penal institutio ns. The reasons for this are in vestigated,

these lying prim arily in South Africa’s broken histor y, in the ineci encies of coherent

decision-m aking in our politic al leadership, our disma ying lack of institu tional

competence a nd the chimera that m inimum sentenc ing legislation ca n somehow

solve the problem, dive rting us from n ding more ecie nt solutions. A variety o f

potential solution s are then proposed w ith a view to ameliorat ing the crisi s, inter

alia from abolishin g minimum sentenc es, to a revision o f bail laws and prac tices, to

the identic ation and adoption of n umerous other re storative justice ap proaches and

approaches p reviously recommended (b ut not implemented) by the South Af rican Law

Reform Commission.

Crimi nal justice — prison s — mini mum sentencing — proposed solut ions

I A CALL UN HEEDED

I start by look ing back two years. In 2017, at the University of the Wester n

Cape (‘UWC’), I delivered a lect ure1 aimed at confronting a cont roversia l,

and often overlooked cr isis — the cr imin al justice s ystem, in pa rticu lar

the min imum sentenci ng regime. My lect ure was t itled ‘Impris oning the

nation: Mi nimum sentence s in South Af rica’. My central thesi s was that

mini mum sentences were no res ponse at all t o curbing c rime in Sout h

Afr ica and to mak ing our people sa fe. The min imum sentenci ng regime,

I argued, i s a poorly thought out, m isdire cted, hugely cos tly and above

all ineective way of pu nishing criminal s and dealing with cr ime.2 I suggested

that the mi nimum sent ence legislat ion was an ext ravagant m ista ke —

a mista ke of science and under standi ng and policy a nd social re sponse.

* This article c onstitute s the ful ly referenced, reviewed version of t he Bennie

Rabinowit z lecture, de livered at the Un iversity of Ca pe Town Faculty of Law

on 11 September 2019. The lecture wa s delivered i n the context of a n ational

outpouri ng of grie f and rage at t he senseless d eath of Uyi nene Mrwet yana. I a m

greatl y indebted to my law c lerk, Rebecca Gor e, for extensi ve help in draf ting

and referenci ng this work.

1 Edwi n Cameron ‘Impr isoni ng the nation: M inim um sentences i n

South Afr ica’ Dean’s Disti nguis hed Lectu re delivered at t he Universit y of the

Western Cape, 19 October 2 017, avail able at https://www.concourt.org.za/images/

phocadownload/justice_cameron/UWC-Deans-distinguished-lecture-19-October-2017-

Minimum-Sentences.pdf.

2 Ibid para 18.

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THE CRI SIS OF CRIMINAL J USTICE IN SOUTH AF RICA 33

The reasons l ie deep in our hi story, and our conti nuingl y ineectua l

eorts to g rapple with it.

In this a rticle, I consider why we are sti ll stuck with mi nimum sentences

when they are demonst rably useles s and counter-prod uctive. I consider

why our prisons a re not places of rehabi litat ion but overcrowded penal

instit utions. I nd the re asons in our broken h istory, in the i neciencies

of coherent decision-ma king i n our present polit ical leader ship, our

dismay ing lack of in stitutiona l competence and the f act that m inimum

sentences themselve s, through t heir fal se promise, d ivert us from  nding

more ecient solutions.

II HOW WE GOT MINI MUM SENTE NCES

Durin g apartheid , prisons were refer red to as ‘un iversities of cr imes’ or

‘criminal headquarter s’.3 The prison system, base d on the Prison s Act

8 of 1959, was strictly segr egated racially.4 The death pen alty was regul arly

enforced — at its heig ht, more than th ree times a week — i n Pretoria .

Before apart heid ocial ly ended, South A frica recon sidered its

approach to cri me and punish ment, viewi ng prisoner s as more entitled

to human rights.5 A transition f rom a punitive to a re storative just ice

approach was herald ed by the change i n mandate, le gislat ion, and policies

towards pri soners.6 The tra nsform ation of apart heid prisons ca n be traced

back to 1988, before the tra nsitiona l negotiation s.7 Prison ser vices were

relocated from t he Department of Ju stice and rena med the Depart ment of

3 Depart ment of Correct ional Ser vices D raft White Pap er on Correct ions in

South Afric a (December 2 003) 6, avai lable at https://www.gov.za/sites/default/les/

gcis_docu ment/201409/correct1.pdf.

4 Ibid at 21.

5 Amanda D issel & Stephen Elli s ‘Reform and stasis: Tran sformation in South

Afric an prisons’ 2002 Critique Internationale 13 9.

6 Department of Correc tional Ser vices W hite Paper on t he Policy of the

Departme nt of Correctio nal Servi ces (1994); the Correct ional Ser vices Act 111 of

1998; and the Depar tment of Cor rectiona l Servic es White Pap er on Correct ions

in South Afric a (2005), avai lable at https://acjr.org.za/resource-cen tre/White%20

Paper%20on%20Cor rections%20in%20South%20Africa.pdf (‘White Paper’) devel op

policies an d regula tions that e ndorse thi s restorat ive approach. The m andate of

the Depart ment of Corre ctional S ervices w as to provide f acilit ies, condit ions,

opportu nities and serv ices for prisoners t hat would be conducive for rehabi litation

and their rei ntegrat ion as law-abid ing citi zens. The Dep artment of C orrect ional

Service s’ emphasis on rehabi litation of pris oners was later de ned and reiterated in

the White Paper at 3 8: ‘Rehabilitation shou ld be viewed not merely as a st rategy to

prevent cri me, but rather as a holistic pheno menon. … Rehabilitation i s achieved

through t he delivery of key serv ices to oenders, includ ing both correct ion of the

oending be haviour and t he development of the hum an being involved.’

7 White Pape r ibid at 28.

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34 (2020) 137 THE SO UTH AFRICAN L AW JOURNA L

Correctional Serv ices,8 reinforcing the notion t hat the Department was no

longer a secur ity serv ice but rather a public service.

The right s enshri ned rst a s fundame ntal rig hts in the i nterim

Constitut ion, and then in the C onstitut ion’s Bill of Rights, e mbody

this tr ansform ation. It was viv idly encapsu lated in a rep ort the newly

establi shed South African Hum an Rights Comm ission produced in 1998.9

The Commi ssion, shortly aft er its establishment , decided in 1996 to launch

an inquir y into prisons in S outh Africa. In the foreword , the Commission’s

chairp erson, Profess or Barney Pit yana, sa id optimi stical ly that the dut y of

the Commi ssion is ‘to develop a dieren t calibre of prison system t hat would

be consistent w ith our new Constit ution and wit h internat ional norm s

and standards’.10 These were halcyon days , reecting the purpos e and hope

we all then felt.

In the same upward s-into- the-lig ht spirit, the Con stitution prov ides

that pris oners, includi ng both remand d etainee s and sentenced oenders ,

have the right to ‘condit ions of detention th at are consiste nt with huma n

di g n i t y’.11 This provi sion requires t hat, at a mi nimum, pr isoners shou ld

have access to exercis e, adequate accom modation, nutr ition, read ing

materia l and medica l treatment . The Constit ution also seek s to protect

inmate s from cruel , inhuma n or degrad ing treat ment or punishment. The

Correct ional Serv ices Act 111 of 1998, as well as Correct ional Ser vices

Regulat ions, elucid ate on these. 12

Many of the new leader s of democratic Sout h Afr ica had exper ienced

prison or the rea l threat of it. T he new President, Nelson Rol ihla hla

Mandela, h ad served 27 year s in apart heid’s prisons. T he new, eager,

8 Prior to May 2014, the Departm ent of Correct ional Ser vices wa s a separate

depart ment, and the Jus tice Depar tment was na med the Depar tment of Just ice

and Constit utional Development.

9 South A fric an Human R ights Co mmis sion Report of T he National P risons

Project of the So uth African H uman Rights Comm ission (29 Augu st 1998), available

at https://www.sahrc.org.za/home/21/les/Reports/The%20Nationals%20Prisons%20

Project%20of%20S AHRC.1998.pdf.

10 Ibid at 3.

11 Section 35(2)(e) of the Bil l of Rights.

12 Sect ion 12(1)(e) of the Bill of R ights. In ful lment of these g uarantees, the

Correct ional Ser vices Act st ipulate s that corre ctional ce ntres must h ave, among

other thi ngs — s 7(1) of the Correction al Ser vices Act: su cient space to en able

inmate s to move freely an d sleep comfor tably wit hin the con nes of thei r cells

and accommod ation that i s properly venti lated; r eg 3(2)(c) of the Correct ional

Service s Regula tions, 20 04 as amende d on 25 April 2 012: cells wit h sucient

natura l and articia l lighting that a llows inmates to re ad and writ e; reg 3(2)(d) of

Correct ional Ser vices Reg ulation s as amended: s ucient and ac cessible ablutio n

facil ities available to a ll inmates a t all times, i ncluding access to hot a nd cold water

for washin g purposes; reg 3(2)(e) of C orrectiona l Services Reg ulations a s amended:

a separate be d and bedding for ever y inmate which provid es adequate warmth fo r

the clim atic condit ions and which compl ies with hygienic requ irements.

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