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.