South African Criminal Justice System - Research Paper Example

? South Africa’s Criminal Justice System South Africa’s Criminal Justice System South Africa experiences some of the highest rates of crime in the world and thus brings sharp focus on the structures and dynamics of the nation’s criminal justice system. Besides, the troubled history of the country adds to interest in South Africa’s criminal justice system and its efficacy. This study explores the key characteristics upon which the South African legal system is based, discussing issues of substantive law, procedural law, types of crimes and the models for judicial review. After this, the study discusses the positives and shortcomings of the South African criminal justice system. A contrast of South Africa’s legal system with the US criminal justice system then precedes the conclusion to the study. The Characteristics of the South African Criminal Justice System At the general level, South Africa has a hybrid criminal justice system, promoting legal pluralism as the country’s legal system developed. According to Mireku (2010), common law in South Africa comprises of a mixture of Dutch-Roman variant of civil law and English common law. The Roman-Dutch influences are traced from the 17th century colonization of South Africa by Holland, while the English influence results from English settlers later in the country’s historical account. The Roman-Dutch aspect of South African criminal law concerns the private law subjects including contractual agreements and family law as well as criminal law. Meanwhile, the English aspect involves the law of evidence and a number of other subjects in public law. Besides the two, South Africa also incorporates customary law within its legal system. Customary law is used where applicable and subject to the Constitution, especially operating in traditional/rural communities. Such communities use a combination of customary, civil/common law to regulate issues including marital issues and inheritance. Other than this, South African law is not codified and follows a similar pattern to the English system where interpretation is sought based on court decisions/precedents and individual statutes (Schwikkard, 2009). Another aspect of the characteristics of the South African legal system is its upholding constitutional supremacy and Universal Bill of Rights. Whereas the Apartheid regime was constructed on a parliamentary sovereignty, the contemporary South African criminal justice system is a constitutional democracy. This is underpinned through entrenching the Bill of Rights in law and a specialized supreme constitutional court. This court occupies the highest position in the judicial hierarchy and solely deals with constitutional maters and decisions interconnected with the constitution (Mireku, 2010). Substantive law in South Africa stems from the influence of the English legal system. According to Barratt and Snyman (2002), the British maintained the Royal-Dutch legal system instead of formally introducing their substantive law upon establishing colonial influence in South Africa early in the 19th century. However, the British figured that the Roman-Dutch system would not adequately cater for modern society requirements which led to innovative laws based on English Acts and using English precedents for interpretation. English procedural law was adopted, which were observed to influence substantive provisions. Moreover, the superior court judges and advocates received their training in England and, thus, tended towards English treatises. One of the aspects in which substantive law is exhibited is in the Bill of Rights, where 27 substantive provisions are provided for. Such provisions revolve around rights such as the right to life and the right to human dignity. Van der Merwe (2004) discusses procedural law in the South African criminal justice system, stating that it traces its roots to the influence of British occupation of South Africa in the 20th century. The colonial master introduced procedural law in all South African territories through legislation in 1910. The current procedural law is based on the Criminal Procedure Act 51 of 1977, with provisions for statutory offences and other penalties. The introduction of the Bill of Rights into the South African constitution has greatly impacted the country’s procedural law through entrenching a number of procedural rights in favor of the arrested party. Such rights may only be limited where this is reasonable and justifiable in a democratic society pursuant of human dignity, equality and freedom. The Criminal procedure Act 51 of 1977 provides for public prosecutions with concurrence with the Minister for Justice. The High Court may not interfere with the manner in which the director of public prosecutions exercises his or her discretion so long as acts are within the statutory powers granted to them. Investigations are the responsibility of a national law enforcement service; the South African Police Services. Types of Crimes in South Africa The National Victims of Crime Survey South Africa (2003) offers a glimpse into the types of crime the country’s criminal justice system has traditionally dealt with. According to the study, corruption, house vandalism, assault and sexual assault, robbery and stock theft are some of the most common types of crime in South Africa. This information indicates that the country’s crime types and levels are intricately related to the socio-economic considerations of the society. Criminal acts such as house vandalism and robbery point to disparities in wealth and poverty in the society, while sexual assault incidences would be higher in countries with worrying poverty indices. The study also established that serious crimes such as murder and assault were more reported to the law enforcement agencies than less serious crimes such as theft of personal property which would be regarded as petty. The figure below shows the different types of crime in South Africa as discerned through the National Victims of Crime Survey South Africa study: Figure 1: Victimization rates in South Africa between 2002 and 2004 (Source: The National Victims of Crime Survey South Africa, 2003). Models of Review of the South African Judicial System Tushnet (2003) compares the models of judicial review in a number of countries including South Africa, arguing that the late twentieth and early twenty first century has witnessed new forms of judicial review while worries about rights and democracy remain true. According to the scholar, the South African Case presents an example of a weak-form judicial review described as democratic experimentalism. Here, a court begins with a principle enshrined n the country’s constitution that is stated at significantly high level of abstraction. The next step involves the court offering an incomplete specification of the principle according to the particular context. The court then requests legislators and executive officials to develop a reasonable prospect of completing the incompletely specified constitutional principle. The next step involves appraising the outcomes of the experiment. The legislators and executive officers may demonstrate the programs implemented are moving in the right direction, or the court may be more specific on what the executive may do to fulfil the changes. The executive and legislature may indicate the difficult in achieving the desired changes to fulfil the principle in the given context; thus, a proposal of modifying the constitutional standard may be suggested. This form of judicial review is clear in the Government of South Africa versus Grootboom case, where a number of people evicted from government land challenged the government’s housing policy. The group argued that the failure of the housing policy to provide housing for them was inconsistent with the constitution which guaranteed the right to housing. The Constitutional Court of South Africa upheld the challenge but did not direct the housing policy to provide housing for the challengers. Instead, the court ruled the housing policy unconstitutional and directed the executive to revise the policy and provide for a component entailing meeting the needs of such plaintiffs. Advantages and Disadvantages of the South African Criminal Justice System One of the main advantages of the South African criminal justice system is the incorporation of customary law into the judicial system. According to Kane, Oloka-Onyango and Tejan-Cole (2005), customary law offers a number of pros including reduction in costs; geographical proximity to the litigants; familiarity to the litigants as the law speaks their language; better speeds due to avoiding the backlogs associated with formal courts; encouragement of restorative justice; and lastly, flexibility with time and context. In a related aspect, South Africa has pluralistic/hybrid judicial system balancing out the Roman-Dutch, English and customary influence that results in a more responsive criminal justice system (Mireku, 2010). Such a system allows for grand acts and possibilities such as the Truth and Reconciliation Commission that allowed for the considerable healing of the country’s troubled past. The experimentalist democracy form of judicial review is another main strength of the South African criminal justice system. According to Tushnet (2003), using traditional doctrines of review that are based on content-base and content-neutrality would not be responsive to new challenges such as internet and campaign finance. Such challenges are novel and lacking regulatory mechanism; thus, courts using experimentalist review may ask the government to develop coherent plans for regulation rather than using available legal mechanism that would be out-dated in this case. The challenge of regulating the internet using traditional forms of market regulation readily spring to mind. On the downside, the customary law incorporated into the South African criminal justice system brings about the problem of the ill-defined legal status of the customary courts; a general lack of training among those issuing judgment; lack of supervision; lack of documentation; discrimination against women, youths and the poor; inability to solve transcommunity issues; and the reliance on supernatural beliefs and forces which removes objectivity when adjudicating and resolving disputes. Another disadvantage entails the experimentalist direction of review followed by the criminal justice system; the revisability of the constitutional principles makes the model a weak-form approach to judicial review. Contrast from the American Criminal Justice System A number of the characteristics of the South African criminal justice system are markedly different from that of the USA. One of the most evident is the manner in which pluralism is embraced in the South African criminal justice system; incorporating elements of English and Roman-Dutch influence alongside customary law. Another important aspect of contrast is the approach to judicial review; according to Schor (2008) and Vazquez (2004), the USA observes that the law is separate from politics and gives the courts the power to ensure the distinction while other democracies such as South Africa view constitutions as political law. Conclusion The history and rate of crime in South Africa make the nation a perfect candidate for study. This study reveals that South Africa has a hybrid criminal justice system consisting of Roman-Dutch and English law, alongside customary influence. Corruption, house vandalism, assault and sexual assault, robbery and stock theft are some of the most common types of crime in South Africa. Democratic experimentalism, a new form of weak-form judicial review, can be seen in action in South Africa. The hybrid system, customary influence and form of judicial review are the main determinants of the pros and cons of the South African criminal justice system. The pluralism evident in the South African judicial system alongside the approach to judicial review is the main source of contrast from the USA criminal justice system. References Barratt, A., & Snyman, P. (2002). Researching South African law. Law and Technology Resources. Retrieved 16 February 2012 from http://www.llrx.com/features/southafrica.htm Kane, M., Oloka-Onyango, J., and Tejan-Cole, A. (205). Reassessing customary law systems as a vehicle for providing equitable access to justice for the poor. New Frontiers of Social Policy, 1-35. Mireku, O. (2010). Three most important features of the South African legal system that others should understand. IALS Conference, 215-217. National Victims of Crime Survey South Africa (2003). Monograph No 101. Retrieved 16 February 2012 from http://www.iss.co.za/pubs/monographs/no101/contents.html Schor, M. (2008). Judicial review and American constitutional exceptionalism. Hall Law Review, 46: 535-563. Schwikkard, P. J. (2009). Procedural models and fair trial rights. International Association of Procedural Law, 1-12. Tushnet, M. V. (2003). New forms of judicial review and the persistence of rights - and democracy-based worries. Wake Forest Law Review, 38: 813-838. Van der Merwe, C. G. (2004). Introduction to the law of South Africa. USA: Kluwer Law International. Vazquez, C. M. (2004). Judicial review in the United States and in the WTO: Some similarities and differences. Georgetown Washington International Law Review, 36: 587-613. Read More