ADDRESS BY THE MINISTER OF JUSTICE, MR DULLAH OMAR AT THE COMMUNITY POLICING CONFERENCE, GAUTENG 8TH APRIL 1995
Issued by: SA Communication Service
I would like to start by reminding you of something, something that we too often forget when our problems threaten to overwhelm us. When the difficulties that lie ahead seem too enormous to overcome.
What I would like to remind you of it this. We have achieved a truly wonderful thing in South Africa. We have achieved what many people believed to be impossible ... a vision of a united South Africa, reconciled with itself and reconciled with its past.
And, in the process, we also achieved something we had never even expected. We sent a message to the world that reconciliation is possible, that sitting down and talking get results and that unity is not just a dream but something that we can build if we work together.
In other words, we gave back to South Africa and the world something it thought it had lost ... hope.
We all know how much hard work and determination it takes to change the face of a nation. And we can congratulate ourselves that we have achieved so much in so short a time. But we know too, because we must be realists. Just as it took a lot of hard work to get us where we are today, there is a great deal of hard work ahead. We have already begun the process of transforming South Africa. But we must be honest with ourselves. Transformation is going to take time and commitment.
If we are to do what we need to do, we cannot afford to wallow in the past. We cannot afford to spend time blaming the past regime for the problems we face now. We know how wrong apartheid was. Now is the time to work for change. We must address the problems we fact and solve them.
I have been asked here today to discuss some of the work the Justice Department has been doing to transform the justice system in South Africa and how this impacts on crime. I would like to start by saying a few words about the judicial process itself.
In terms of the Interim Constitution, the courts hold what we call the judicial authority. This means that the courts are independent of government. They must act in terms of the law and above all of the constitution. Previously, when we had no constitution, many problems arose because of bad laws made by Parliament. Today Parliament cannot simply make a law that is in conflict with the constitution. If it does, you or I can take that law to the Constitutional Court who can rule it unconstitutional. This is why we say that the constitution is the supreme authority and that the Constitutional Court is the highest court in the land
The courts must be independent. This is a very important principle. It means that if someone appears in court, the courts must decide whether that person is guilty or innocent - free from interference by any government or person. This protects the accused person from public revenge or emotion. And it also prevents any government or other body from interfering with the process of justice. We cannot build a justice system on revenge or patronage. We can only build a justice system on justice and human rights.
As I have said, the principle of independent courts lies at the centre of the justice system. But, as we all know, we cannot build genuine justice or indeed fight crime unless people respect the law and the courts. In the past, the majority of our people lost faith in the justice system. Over the years, many of us have experienced the unjust laws of the Apartheid regime. Countless men and women were brutally arrested and sometimes for tortured. Their interests and safety were not protected. They appeared in courts where only white men sat in judgement over them. Their experience of justice was of a hostile and unjust system, staffed by unsympathetic people that, at least, was the perception - though in truth there were many good and honest people who themselves were forced to apply unjust laws.
Our job is to transform the justice system to that people will learn to trust in justice - so that people will come to respect laws made for the protection f the citizens of this country. And we must do this in the context of a culture of human rights; a culture that respects the fundamental human rights of all our citizens, including those accused of crimes. Arrested persons also have rights.
When dealing with crime, we need to remember this. Everybody is entitled to fundamental human rights and, like the rest of us, the rights of the accused in a criminal case must be respected. But, of course, the community also has rights and the task of justice is to balance the rights of the accused with the rights of the public to protection against crime.
This balance is particularly significant in the decision of whether or not to grant bail.
Decisions about bail are made in terms of the constitution, in terms of the criminal procedure act of 1977, in terms of previous court interpretations of the law and in terms of general legal principles. The basic underlying principle is that a person is innocent until his or her guilt is proved beyond reasonable doubt. According to that principle, a person may not be deprived of his or her freedom until guilt is proved. On the other hand, in a just system, a person will or should not be arrested and charged unless there is some evidence that a crime has been committed. Care must therefore be taken that the accused does not escape before the trial, interfere with state witnesses or endanger the safety of the public.
The question of whether or not bail should be awarded and, if so, how much, is a decision that the courts must make every day. In making this decision, the judges and magistrates must try to strike a balance between the protection of the freedom of the individual and the effective administration of justice.
In South Africa, no specific bail guidelines are laid down in any statute at present and the court must consider all relevant factors. A particularly important factor would be, for example, whether the court thinks that the accused will abscond. Although some members of the public and the media seem to believe that people who have committed serious crimes should not be entitled to bail, this is not a sufficient reason. It may however be a contributory reason as a person charged with a serious crime may be more likely to abscond than someone charged of a less serious offence.
Another factor is whether the accused is likely to commit a further crime - especially of the same kind.
In the same way, the idea that bail can be used as punishment is incorrect. A person cannot be punished until he or she is found guilty of a crime.
One of the things that makes decisions about bail difficult is the fact that the court must make its decision without facts that can be proved. Decisions about bail are made based on a prediction of what is likely. There is thus always a risk involved when granting bail.
There are two reasons why we have decided to make some changes to the present bail law.
The first has resulted from the fact that bail is now a fundamental right in our constitution. This principle appears to have created uncertainty in the courts and the tendency has been to observe the constitutional right to bail. As a result, there is a lack of balance as the rights of
The second is the high level of crime in our society. We obviously need to protect communities from the possible effects of granting bail to people who may do further harm or commit the same crime again.
It is in view of these problems that I asked the SA Law Commission last year to investigate bail law. The report they have prepared on the subject has now been completed and was tabled in Parliament on the 30 March 1995, a few days ago.
The Law Commission says that the reform of bail law must seek to find a healthy balance between the constitutional rights of the arrested person and the right of the community to safety and protection from crimes of violence.
The Commission has pointed out that the constitution itself contains this balance and draws attention to two sections that limit a person's fundamental rights in certain circumstances. The first section (section 33(1)) says that the liberties and rights of the individual may be limited if it is reasonable, justifiable and necessary to do so. The second (section 25(D)) says that bail may be refused if the interests of justice demand it.
The Law Commission recommends that Magistrates or Judges be given greater powers to obtain the information they need to make a proper decision about the granting of bail. It recommends further that these presiding officers be compelled by law to investigate applications for release with or without bail. The emphasis is on "investigate". At present, Magistrates and Judges must make a decision only based on evidence provided by the prosecutor.
Another important proposal of the law commission is that the Criminal Procedure Act of 1977 be amended to lay down clear guidelines for use by the courts. The Law Commission suggests the following factors are taken into consideration in the guidelines: The nature and seriousness of the charge and possible sentence, the strength of the case, the likelihood that the accused might abscond, the extent to which bail conditions will be binding or effectively enforced, and the ease with which such conditions could be breached. Other factors include the likelihood of the accused interfering with witnesses, or endangering the safety of the public or committing another serious crime.
Concerning the constitutional rights of the accused, the Law commission recommends, amongst other safeguards, that an arrested person should be informed as soon as possible of his or her right to bail and that the bail request must be brought to court as soon as possible. The power of an Attorney General to prevent a court from considering the release of an accused on bail should be repealed because such a provision is unconstitutional.
These proposals are presently being considered and cabinet will be asked to approve an amendment to the law to provide better and clearer guidelines to courts. But it is also extremely important that the public be asked to submit their ideas and proposals on this important issue. At the same time, the Attorney-General of Johannesburg has been asked by me to help prepare guidelines for use in bail applications.
Now I would like to talk about the role of the community in the fighting and prevention of crime. And I want to stress that I believe that role to be essential. Crime is a disease of society and that society must participate in fighting that disease. Like doctors, the justice system has an important role to play but, if we are th heal our ailing society of crime, the community must play a central role.
We must report crime when we find it. If we have evidence, we must provide it. We must help the police and the courts in their efforts to eliminate crime. We must give all the evidence and information we can to those whose job it is to protect us. I know that very often people are afraid that criminals will act against them if they give information to the police or appear in court as witnesses.
I will be telling you a little later about the witness protection programme, but I would like to suggest that strong community police forums should work on ways to provide protection for individuals who have information about crime. Co-operation between the role players is essential. At government level, the Departments of Justice, Safety and Security and Correctional Services have established a Crime Secretariat. This secretariat has a number of functions. It assists in helping to eliminate problems in areas where they occur. It tries to improve communication between the three departments at all levels so as to coordinate strategies. And it gives advice and direction to local liaison committees.
We are also involved in a pilot programme aimed to discussing the legal system with relevant organisations and community leaders. This programme goes hand in hand with a pilot programme designed to promote a system of lay assessors in the Magistrates courts. Assessors are appointed by communities and are able. not only to bring more representativity to the Magistrates courts, but to reflect the views of the communities from which they come.
Crime was also discussed at a legal forum convened by the Ministry of Justice in November last year and again at a conference on crime and security recently. The consensus is that we can only effectively combat crime if all role players are involved - including the NGOs and the broader community.
Regarding bail, as I have said, we believe that there is a need for guidelines and some changes in the law. But we will depend on cooperation from all the role players in our society. The police and prosecution must investigate and follow up enquiries as quickly as possible so that they can present as complete as possible a picture at the bail hearing.
The Judges and Magistrates may soon be able to become more actively involved. And members of the public and communities should come forward with information and evidence.
And now I would like to tell you a little about the protection of witnesses from intimidation. The Criminal Law Amendment Act provides for the following protection. If a witness or prospective witness has good reason to believe that his safety or the safety on any member of his family or household is threatened, he can apply to a police station or prison for protective custody. This may be a place of safety such as a prison or police cell, at his or her home or other place of residence. There is also provision for the protection of the identity of a witness in court.
We must bear in mind that the purpose of the legislation is to encourage witnesses to give evidence voluntarily. People cannot be forced to make use of the programme.
In addition, as we have discussed, bail can be refused if there is a probability that the accused will interfere with witnesses or endanger the police investigation. Intimidation and harassment of witnesses are a major stumbling block when trying to persuade witnesses to testify. Some are threatened. Others commit perjury or fail to appear in court because they fear for their lives. Often witnesses are attacked and even killed.
The Interdepartmental crime secretariat I referred to earlier has been looking at the question of making the protection programme work better. Safety and Security and Correctional Services have issued directives to station commanders and heads of prisons and the Department of Justice has requested both Attorneys-General and Magistrates offices to build awareness of witness protection programmes.
Provision is also made for allowances to be paid to a witness in protective custody together with remuneration for lost income. In the 1994/95 financial year, R3 million was made available for the protection of witnesses.
The Criminal Law Amendment Act also provides for the protection of witnesses under the age of 18 years who may find giving evidence traumatic. If the court feels that giving evidence would expose him or her to too much mental stress or suffering, it may appoint any competent person as an intermediary to give evidence on behalf of the youth.
I would like to end by making an appeal to all of you here. If we are to rid our society of the crime that threatens the peace, safety and security of our citizens we need to work together. I have no doubt that we can succeed. We have, for the first time in the history of our country, achieved political peace. There are still problems in some areas, but on the whole we have reduced the level of political violence to a degree no-one, a year or two ago, would have though possible.
In doing so we have demonstrated our strength and our commitment to political and social transformation. And it is not just because we have a new government that we have achieved political peace. The people of South Africa worked hard to bring about peace in our land. Now we need to work together to bring an end to the crime that threatens us all.
We succeeded once before. Let's do it again!