Legal Watch

Confidence in SA justice system remains high

Judge Thokozile Masipa presiding at Pistorius trial
Thokozile-Masipa.jpg

How well has the reputation of South Africa’s criminal justice system withstood the scrutiny of two internationally high-profile court cases amid legal controversies on the political front?

The Oscar Pistorius trial and the ongoing Shrien Dewani case have both raised questions about the quality, integrity and equality of justice for the rich and the poor, and about public faith in the system.

International research that has just been released gives some answers on the question of public faith.

The Pistorius case, in relation to other high profile political events with legal implications, raises questions about much more than just the quality of justice in the system.

It affects public perceptions about the criminal justice system over a wide front, from its integrity, the rule of law and equality before the law to justice for all.

It also cuts to matters such as the separation of powers between the executive, legislative and judicial functions of government and how they relate to the rights, freedoms and protection supposedly enjoyed by all citizens.

Judging by the relentless public ‘trial by social media’ of Pistorius, the competence and impartiality of officers of the court, from the judge and the prosecutor to defence lawyers, was questioned and praised in almost equal measure.

So how does the South African criminal justice system fare in the eyes of its people?

In a recently released worldwide Gallup poll conducted via face-to-face interviews, South Africans had the 7th highest level of confidence in their justice system among 28 Sub-Sahara African countries.

Some 60% of South Africans had confidence in their justice system. Malawi was at the top with a 69% confidence rating. Bottom of the log was the Democratic Republic of Congo at 22%.

The poll involved approximately 1 000 adults in each country, aged 15 and older, during 2013, well before the Pistorius trial got underway or reaction to the Nkandla scandal reached fever pitch.

Generally, public views around cases like Pistorius’s trial are largely emotionally driven rather than by knowledge of the law or an impartial analysis of the legal facts and tests available to courts. As Judge Thokozile Masipa said when passing sentence in the Pistorius trial: “The general public may not even know the difference between punishment and vengeance.”

Does that mean that the apparent majority of the public wanted a harsher sentence and are now disillusioned with the legal system? Not necessarily, but it may have planted a seed of doubt in their collective mind. Coupled to other cases that might fail to meet public expectations, the doubt may grow over time.

Dewani case

In the Dewani case South African prosecutors first had to convince the British courts that South Africa indeed had a fair, humane and competent criminal justice system, before Dewani was extradited for trial. Their success in this regard should have strengthened positive perceptions of the South African justice system.

However, in both cases social media and mainstream media reports tended to reflect a popular perception that the rich have an advantage, being able to afford the best lawyers, securing lesser charges and lesser sentences.

Another perception seems to be that the rich, well-known or politically connected are given better treatment in prison or get sent to better prisons than ordinary prisoners. Not only Pistorius and Dewani fit this perception – one being housed in a hospital wing single cell, the other in a psychiatric hospital instead of the normal overcrowded and violent communal cells – but so do well-known, politically-connected former prisoners like Schabir Shaik, Jackie Selebi, and Tony Yengeni.

In some of these cases accusations of preferential treatment seem to be true. In others public opinion is based on misconception and a lack of factual information.

In Pistorius’s case Masipa found it necessary to emphasise strongly that an appropriate sentence had to be found that would recognise the “delicate balance between the crime, the criminal and the interests of society”.

She argued that too long an imprisonment would “break” Pistorius and would be inappropriate. On the other hand, "a custodial sentence would not send the right message to the community" and a suspended sentence could lead to society losing faith in the justice system.

She also warned against creating the impression that there was “one law for the poor and disadvantaged, and another for the rich and famous”.

This caution should apply throughout the entire criminal justice process, from lawmaking, investigations, initial arrest, the court process until sentence is passed, eventual incarceration or other punishment meted out and possible parole.
It should also be applied far wider than just to the rich-poor or celebrity-ordinary paradigm. If not, public faith in the entire system is easily lost.

South Africa’s apartheid laws, viewed by the majority of citizens as unjust, caused a loss of faith in the justice system in force at the time. Likewise, some current legislative attempts, like the ‘secrecy bill’ or proposed new property rights laws, are rejected by large sections of the population.

The perceived political manipulation of judicial processes to either have some prosecuted or others protected against prosecution, also impacts negatively on faith in the system. This was demonstrated by the ‘spy tapes’ saga around the initial corruption charges against Mr Zuma followed by their withdrawal.

Other issues and perceptions currently impacting on public confidence in the criminal justice system include:

• Political manipulation of the appointment of judges and other justice system officials;

• Selective prosecutions;

• The high cost of justice that excludes many from its benefits ;

• Undermining of constitutional processes and institutions working in tandem with the justice system; and

• Increasing political control over the judiciary.

Present faith level

That 60% of South Africans presently have faith in their justice system suggests the country is not yet in trouble on this score.

Gallup’s research in 123 countries also showed that global confidence in judicial systems and courts on average stood at 53% in 2013. Regionally, residents in Asia have the highest confidence at 65%, while residents in Latin America (35%) and the former Soviet Union (28%) have the least.

There is an important lesson in the conclusion of researchers that the strong confidence in India’s judicial systems “most likely reflects visible efforts to strengthen the rule of law (with) high-profile cases in which the judiciary ruled against corrupt politicians, businessmen and celebrities and held them accountable”. This was in addition to improvements in the Right to Information Act and the creation of fast-track courts.

They also concluded that “increased emphasis on the rule of law has far-reaching implications for the stability and growth of societies”.

“Investment and innovation occur when individuals are confident in the economic situation at the local and national level. Absence of a strong rule of law threatens growth and development and can lead to either speculative investment or long-term, low-capital investments,” they found.

by Stef Terblanche

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