SA well on the road to overcriminalisation, new FMF index finds

14 March 2024

The Free Market Foundation (FMF)’s Section 12 Initiative today launched its Criminalisation Index, which will in time comprehensively quantify the extent of criminalisation that exists in South Africa’s statutory, regulatory, and judicial law. The FMF’s initial findings, with the index in its earliest stage of development, is that South African law is overcriminalised.

Access the index here: https://section12.org.za/criminalisation-index/

At this stage of the index’s development, the FMF considered seven portfolios that in the public mind exist outside of the ‘law and order’ or ‘criminal justice’ sphere. These are Health; Mineral Resources and Energy; Communications and Digital Technologies; Land Reform and Rural Development; Trade, Industry, and Competition; Labour and Employment; and Transport.

Between them, they administer a staggering 169 criminal offences. As more research into these portfolios is conducted, it is expected that more such offences will be found, especially in ministerial regulations.

Out of these, the conduct covered by 64 of these ‘offences’ are plainly inappropriate within the domain of criminal law. These should immediately be decriminalised or become civil matters. An additional 29 of the 169 offences are somewhat inappropriate. 50 are somewhat appropriate, and only 26 kinds of conduct are appropriately criminal.

Violent crime in South Africa is out of control, with the South African Police Service’s latest statistics indicating that there are 86 murders and 136 (reported) rapes every single day. The prosecution rate for these offences is unacceptably low, and South Africa’s prisons are overfull. Despite this travesty of justice, police, prosecutorial, and prison resources are still dedicated to combating an array of conduct and activities that should not be classified as ‘criminal’ in the first place.

‘While you are being hijacked at gunpoint at an intersection, the police might be around the corner arresting an amateur filmmaker for showing his recordings without being registered with the Films and Publications Board,’ says Martin van Staden, FMF Head of Policy.

Single resource

Once the Criminalisation Index is complete, it will be the only publicly accessible resource that South Africans can turn to, to discover every finable or imprisonable offence recognised by law. As things presently stand, interested parties must take on the daunting task of finding offences scattered all throughout national, provincial, and municipal legal instruments.

‘The result of the status quo is that most South Africans simply do not know how criminalised we are. Everyday, seemingly innocuous things that we might do, could very well be a crime in the eyes of the law. Our index aims to ensure that South African society can get a better grip of whether the scope of our criminal law is appropriate or not,’ says Van Staden.

The FMF therefore calls upon Parliament to adopt a Criminal Code that will group all offences in South Africa – whether found in regulation, legislation, municipal bylaws, judicial pronouncements, or the common law – in one, easily accessible place.

A Model Criminal Code is being developed by the FMF to guide Parliament in the right direction.

‘If an offence is not found in the Criminal Code, it should not be prosecutable,’ concludes Van Staden. ‘It is a basic violation of the standards of the rule of law to expect ordinary laypeople to abide by laws that they do not even know exist. Soon, if the new Tobacco Bill is adopted, you could be imprisoned for smoking or vaping inside your own house even if you are alone. Who would have known this?’

The adoption of a widely and continuously publicised Criminal Code is an easy manner of promoting access to justice.

Issued by Anneke Burns, FMF Publicist, 14 March 2024