The crisis of criminal justice in South Africa

• Author: Cameron, E.
• Date: 17 March 2020
• Pages: 32-71
• Published date: 17 March 2020
• Citation: (2020) 137 SALJ 32

32

THE CRISIS OF CRIMINAL JUSTICE IN

SOUTH AFRICA*

EDWIN CAMERON

Retired Justice of the Constitutional Court of South Africa

This article investigates the crisis of criminal justice in South Africa. The article

demonstrates through statistical analysis how South Africa’s prisons are not 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-making in our political leadership, our dismaying lack of institutional

competence and the chimera that minimum sentencing legislation can somehow

solve the problem, diverting us from nding more ecient solutions. A variety of

potential solutions are then proposed with a view to ameliorating the crisis, inter

alia from abolishing minimum sentences, to a revision of bail laws and practices, to

the identication and adoption of numerous other restorative justice approaches and

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

Reform Commission.

Crimi nal justice — prisons — mini mum sentencing — proposed solut ions

I A CALL UNHEEDED

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 crisis — the criminal justice system, in particular

the minimum sentencing regime. My lecture was titled ‘Imprisoning the

nation: Minimum sentences in South Africa’. My central thesis was that

minimum sentences were no response at all to curbing crime in South

Africa and to making our people safe. The minimum sentencing regime,

I argued, is a poorly thought out, misdirected, hugely costly and above

all ineective way of punishing criminals and dealing with crime.2 I suggested

that the minimum sentence legislation was an extravagant mistake —

a mistake of science and understanding and policy and social response.

* This article constitutes the ful ly referenced, reviewed version of the Bennie

Rabinowitz lecture, delivered at the University of Cape Town Faculty of Law

on 11 September 2019. The lecture was delivered in the context of a national

outpouring of grief and rage at the senseless death of Uyinene Mrwetyana. I am

greatly indebted to my law clerk, Rebecca Gore, for extensive help in drafting

and referenci ng this work.

1Edwin Cameron ‘Imprisoning the nation: Minimum sentences in

South Africa’ Dean’s Distinguished Lecture delivered at the University of the

Western Cape, 19 October 2017, available 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 lie deep in our history, and our continuingly ineectual

eorts to grapple with it.

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

when they are demonstrably useless and counter-productive. I consider

why our prisons are not places of rehabilitation but overcrowded penal

institutions. I nd the reasons in our broken history, in the ineciencies

of coherent decision-making in our present political leadership, our

dismaying lack of institutional competence and the fact that minimum

sentences themselves, through their false promise, divert us from nding

more ecient solutions.

II HOW WE GOT MINIMUM SENTENCES

During apartheid, prisons were referred to as ‘universities of crimes’ or

‘criminal headquarters’.3 The prison system, based on the Prisons Act

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

enforced — at its height, more than three times a week — in Pretoria.

Before apartheid ocially ended, South Africa reconsidered its

approach to crime and punishment, viewing prisoners as more entitled

to human rights.5 A transition from a punitive to a restorative justice

approach was heralded by the change in mandate, legislation, and policies

towards prisoners.6 The transformation of apartheid prisons can be traced

back to 1988, before the transitional negotiations.7 Prison services were

relocated from the Department of Justice and renamed the Department of

3 Department of Correctional Services Draft White Paper on Corrections in

South Africa (December 2003) 6, available at https://www.gov.za/sites/default/les/

gcis_document/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 Correctional Services White Paper on the Policy of the

Department of Correctional Services (1994); the Correctional Services Act 111 of

1998; and the Department of Correctional Services White Paper on Corrections

in South Africa (2005), available at https://acjr.org.za/resource-centre/White%20

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

policies and regulations that endorse this restorative approach. The mandate of

the Department of Correctional Services was to provide facilities, conditions,

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

and their reintegration as law-abiding citizens. The Department of Correctional

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 behaviour and the development of the hum an being involved.’

7White Paper 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 security service but rather a public service.

The rights enshrined rst as fundamental rights in the interim

Constitution, and then in the Constitution’s Bill of Rights, embody

this transformation. It was vividly encapsulated in a report 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

chairperson, Professor Barney Pityana, said optimistically that the duty of

the Commission is ‘to develop a dierent calibre of prison system that would

be consistent with our new Constitution and with international norms

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

we all then felt.

In the same upwards-into-the-light spirit, the Constitution provides

that prisoners, including both remand detainees and sentenced oenders,

have the right to ‘conditions of detention that are consistent with human

di g n i t y’.11 This provision requires that, at a minimum, prisoners should

have access to exercise, adequate accommodation, nutrition, reading

material and medical treatment. The Constitution also seeks to protect

inmates from cruel, inhuman or degrading treat ment or punishment. The

Correctional Services Act 111 of 1998, as well as Correctional Services

Regulations, elucidate on these. 12

Many of the new leaders of democratic South Africa had experienced

prison or the real threat of it. The new President, Nelson Rolihlahla

Mandela, had served 27 years in apartheid’s prisons. The new, eager,

8 Prior to May 2014, the Department of Correctional Services was a separate

department, and the Justice Department was named the Department of Justice

and Constit utional Development.

9 South African Human Rights Commission Report of The National Prisons

Project of the South African Human Rights Commission (29 August 1998), available

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

Project%20of%20SAHRC.1998.pdf.

10 Ibid at 3.

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

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

Correctional Services Act stipulates that correctional centres must have, among

other things — s 7(1) of the Correctional Services Act: sucient space to enable

inmates to move freely and sleep comfortably within the connes of their cells

and accommodation that is properly ventilated; reg 3(2)(c) of the Correctional

Services Regulations, 2004 as amended on 25 April 2012: cells with sucient

natura l and articia l lighting that a llows inmates to read and write; reg 3(2)(d) of

Correctional Services Regulations as amended: sucient and accessible ablution

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 climatic conditions and which compl ies with hygienic requirements.

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