South Africa’s justice system is fraught with challenges. Among them are overcrowded prisons due to high levels of crime and incarceration, minimum sentences for certain crimes and awaiting trial prisoners clogging up facilities.
Then there are court backlogs in both criminal and civil cases, caused by high levels of criminality and litigation but also by issues as simple as power outages, missing dockets and water cuts at courthouses.
Correctional services minister Pieter Groenewald’s recent suggestion that the perpetrators of less serious crimes be given lashes instead of jail time, thereby freeing up prison beds, is unlikely to pass legislative or constitutional muster.
But he is right about one thing: SA needs a deep reassessment of how its court system operates, and innovative solutions to improve the situation.
American criminologist Herbert Packer writes in his book The Limit of the Criminal Sanction: “Criminal sanction is the law’s ultimate threat ... It is at once uniquely coercive and, in the broadest sense, uniquely expensive. It should be reserved for what really matters.”
Packer’s quote is contained in the South African Law Reform Commission’s discussion paper on alternative dispute resolution in criminal matters. It suggests that SA may be too focused on traditional “Westernised” ways of criminal sanction (imprisonment) rather than other options that would free up prisons and court rolls and save government the cost of a lengthy trial.
The paper forms part of a review of South Africa’s criminal justice system that is under way to address systemic issues and improve its effectiveness. It is looking at a wide mix of issues, including police performance, court procedures and correctional services, with the aim of strengthening the system and ensuring it aligns with constitutional values and international standards.
The discussion paper on alternative dispute resolution includes various mechanisms, among them pre-trial mediation, in which the two opposing parties negotiate an out-of-court settlement.
As the Sunday Times reported last weekend, pre-trial mediation is commonplace in civil litigation and is used to shrink backlogs at high courts. The Johannesburg high court has a six-year wait for a trial date, according to Gauteng judge president Dunstan Mlambo and pre-trial mediation is now mandatory in Gauteng.
South Africa’s courts are the bastion of a democratic society. We cannot allow them to be tainted with the view that justice is for sale to the highest bidder
However mediation in criminal cases is unlegislated, and therefore unregulated. Despite this, it is being widely implemented, mostly coordinated on an informal basis by state prosecutors in court hallways. Mediation generally involves the victim withdrawing the criminal complaint in favour of a payout, an apology, or any other options the parties agree on. The offender avoids a criminal record.
This is highly problematic for several reasons.
First, prosecutors are employed by the state to prosecute crimes. Acting as an intermediary between the accused and the victim is a job they are not qualified for and it is a clear conflict of interest.
Second, the out-of-court settlements haggled over during mediation mostly include some form of monetary compensation for the victim, in exchange for the victim withdrawing charges. In a country rife with corruption, this opaque process raises red flags. Will all prosecutors — who are taking on this role in an informal capacity — resist attempts by offenders to push for a specific outcome?
Third, mediation in criminal matters has the potential to skew the scales of justice in favour of those who have a certain level of wealth. A rich offender has the option of throwing money at the problem, a poor one does not. A poor victim — who cannot afford top class legal representation to ensure they get a fair deal in the process — is more likely to be coerced into settlement.
Perhaps the most brazen example of how the situation can be abused was in 2019, when three men charged with beating a married couple almost to death following a road rage incident, walked away from the eMalahleni magistrate's court free after the victims requested the withdrawal of charges following an out-of-court settlement in which they received R5.4m from their attackers.
While the victims may well have been satisfied with this outcome, the process is unlikely to always be a win-win scenario and is ripe for manipulation.
So while alternative dispute resolutions such as pre-trial mediation potentially have merit, the process needs to be tightly controlled.
It must be transparent and on the public record with a national database of all criminal cases that result in out-of-court settlements, so that repeat offenders are not able to evade prosecution on future similar charges.
Mediation should only be an option for “less serious” crimes for which a conviction is unlikely to result in prison time.
In addition, prosecutors should stay far away from the mediation process. Professional mediators, with the wants and needs of the victim at heart, must run the process, ensuring it is free from manipulation, intimidation and bullying.
We hope the South African Law Reform Commission will hold a similar opinion once the criminal justice system review is complete.
South Africa’s courts are the bastion of a democratic society. We cannot allow them to be tainted with the view that justice is for sale to the highest bidder.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.