JUSTICE DELAYED IS JUSTICE DENIED

The Department of Justice and Constitutional Development recently announced its controversial decision to carry out an assessment of the decisions of the Constitutional Court and the Supreme Court of Appeal. Perhaps its time and resources would be better spent by assessing the degree to which our lower courts are at present carrying out their prime function of dispensing justice - and in particular, of ensuring the right of detainees "to have their trial begin and conclude without reasonable delay" in terms of section 35 (3) (d) of the Constitution. 

An assessment of the speed with which cases are finalised in the lower courts would be beneficial to the justice system, to victims of crime and to those charged with criminal offences. Such an assessment could help the courts to deal with their heavy case load, particularly if it is aimed at identifying the reasons for delays within these court structures (and especially within the criminal justice system). By so doing it could improve the right of citizens to access to the courts and could also reduce the costs of running the judicial system.

The serious backlog of cases - especially in the lower courts - goes back more than a decade. The problem was first acknowledged in 1999 by then Justice Minister Penuell Maduna. In March 2006 then Justice Director-General Menzi Simelane reported an estimated backlog of 36 915 cases in the lower courts. In November 2006 then Justice Minister Brigitte Mabandla acknowledged that up to 60% of Cape Town courts and 76% of courts in Kwazulu-Natal faced huge backlogs:

At that stage the Johannesburg maintenance court had over 80 000 outstanding cases. The negative trend continued in 2007 with an estimated 210 000 outstanding cases. These cases included 37 000 dockets in the lower courts that were older than 12 months and 20 000 cases in the regional courts - where most serious and violent crime is dealt with. At that stage -despite appointing 260 new court managers- court sitting hours as well as case finalisation rates had been dropping steadily since 2003. 

Since 2009 there has been a steady increase in the number of people awaiting trial for more than two years in South African prisons. Figures indicate there were a total of 46 432 persons being held in detention while awaiting trial in October 2010. Of these, 2 080 had been in prison for more than two years with the vast majority of these (1 516) having been detained for more than three years.

Practitioners within the legal fraternity such as attorneys, advocates and prosecutors have identified the following factors as causes for unacceptable backlogs: 

- The SAPS take very long to finish their investigations;
- The poor quality of many SAPS investigations;
- Court rolls (Regional and Disrict Courts) that are supposed to start at 09h00 in the morning but only start as late as 12h00 or thereafter;
- Magistrates arriving for work only at 12h00 or therafter;
- Instances where presiding officers take or are granted inordinate periods of leave of absence during court proceedings or running trials;
- Escalating crime figures;
- Understaffing of courts especially magistrates, prosecutors and interpreters;
- A severe shortage of adequate courtrooms and/or buildings;
- Poor case management and case-flow management ;
- Tampering with, or loss of, case records;
- Mismanagement of the salaries of legal professionals within the department; and
- The failure to fill large numbers of vacant magistrates and judges' posts - even where suitable candidates are available.

Another complicating factor is backlogs at the forensic science laboratories which play a crucial role in the investigation of crimes. According to the Ministry of Police there were 10 121 outstanding forensics reports in March 2008 - which represented an increase of 66% in less than a year. On average the waiting period for forensic results increased from an average of 54 days in 2007 to 60 days in 2008. Police Minister Nathi Mthetwa reported that the backlog in forensics reports had jumped from 6 068 untested samples during June 2007 to 11 758 as of January in 2009. The number of stolen dockets had also increased from 382 in 2005 to 668 in 2008.

A recent case in the Western Cape illustrates the scope of the problem. In January 2009 ten people were indicted with ten charges of murder and armed robbery. The case was finally concluded only in March 2012. In the meantime the state provided the ten accused with ten counsel (one advocate representing each of the accused), at the State's expense and via the Legal Aid Board. The cost to the taxpayers of the counsel during the course of the trial was more than R2-million. Add to this the cost of transporting the prisoners between Polsmoor and the court; the court's time - including the judge, assessors, interpreters and clerks - and the total cost of the trial becomes truly enormous. Ironically, the costs involved were much greater than the value of money that the criminals had been trying to steal.

The fact that these cases take so long to process is one of the causes of overcrowding in our prisons. Overcrowding, in turn, was one of the factors in President Zuma's recent decision to approve the early release of almost 15 000 sentenced prisoners. Awaiting trial prisoners are taking up too much prison capacity primarily because its takes too long to finalise their cases. According to the Department of Correctional Services the total prison population at the end of March 2012 stood at 162 162. Of these 112 467 are sentenced prisoners and 49 467 are awaiting trial. The country's prisons are meant to house 118 154 prisoners.

Justice delayed is justice denied. There is a clear need to examine and overhaul the manner in which South Africa's lower courts are dealing with their work load. The current situation impacts detrimentally on a whole array of individual constitutional rights including a victim's right to dignity, everyone's right to access to the courts and an accused person's right to a fair trial which must be concluded without undue delay. In order to respect and give effect to these rights government would do well to assess and address the dire backlogs in South Africa's lower courts.

Issued by the FW de Klerk Foundation, May 24 2012

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