CQ No.

43 June 2013 6/27/13 12:06 PM Page 17

LESSONS FROM
THE PAST
Remand detention and
pre-trial services

Clare Ballard* and Ram Subramanian**

cballard@uwc.ac.za
rsubramanian@vera.org

A 1997 project established by the Vera Institute of Justice, a New York-based non-government organisation,
aimed to alleviate overcrowding in South African prisons by assisting magistrates in bail proceedings and
thereby decreasing the number of admissions into awaiting trial facilities. Understanding the context in
which the project operated leads to the important observation that efforts to launch and sustain discrete
experiments in justice innovation will necessarily come under strain when faced with aggressively adverse
macro circumstances, like the ones that faced Vera’s pre-trial project. However, the legal and social milieu
has changed over the last twelve years. It is perhaps time to once again explore how innovations in criminal
justice administration (a much-needed initiative) might best work in the various criminal justice
management areas, given the discrete circumstances of each.

In 1997, in response to the problem of that public concern about crime and public safety
overcrowding in South African prisons, the Vera in general, and the subsequent legislative and
Institute of Justice (Vera), a New York-based NGO, judicial responses in particular, played some role in
established a demonstration pre-trial services the project’s ultimate demise. We suggest, finally,
project aimed to reduce the number of admissions that what might not have worked a decade ago, is
into remand detention. The project, based at possibly worth revisiting today, in South Africa’s
various court centres in the country, sought to current social and political climate. Incremental
provide magistrates with independently verified shifts in the legislative terrain and policy indicate a
information about defendants at arraignment, growing concern around the excessive use of
which, it was hoped, would make the bail process remand detention and the conditions to which
more efficient, equitable and informed.1 Although
remand detainees are exposed. Coupled with such
portions of the pilot project did survive, discretely,
shifts are more recent efforts on the part of
in a spinoff court project in Port Elizabeth,2 Vera’s
government to deal with the problems in the
pre-trial services project was not adopted
criminal justice system, in particular the backlogs
nationally. In this article we firstly discuss Vera’s
in South Africa’s criminal courts.
pre-trial project, its purpose and its results.
Secondly, we sketch the social and politico-legal
context in which the project operated, for it is clear THE VERA PRE-TRIAL PROJECT
During the late 1990s South African prisons ex-
* Clare Ballard is a researcher at the Community Law perienced an unprecedented growth in the remand
Centre, University of the Western Cape, and an attorney detainee population.3 Unsurprisingly, this period of
of the High Court of South Africa.
** Ram Subramanian is a Senior Program Associate at the South African history is characterised as one in
Vera Institute of Justice. which public anxiety about crime and public safety

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issues was at an all-time high.4 Part of this anxiety R500 to R300, 63% of accused persons in Mitchell’s
stemmed from a prevailing misconception Plain could still not afford to pay the R300, and
amongst the public that the right to bail was to were duly sent back to Pollsmoor Prison to await
blame for the high levels of violent crime, and it trial.10
was partly fuelled5 by a number of highly
publicised cases in which crimes were committed In the end, the project itself had little effect on the
by offenders who had been released on bail.6 size of the remand detainee population still
Public outrage put pressure on government to languishing in prison; and despite its initial
ensure judicial accountability in matters of bail, intentions to do so, the PTS project was not rolled
particularly in high stake cases. out nationally by the DJCD after the pilot phase.
What happened? For a number of reasons, the PTS
In 1997, Vera, at the invitation by the then South project suffered from a few key practical
African Minister of Justice, Dullah Omar, shortcomings that partially explain why the project
established the Bureau of Justice Assistance (BJA) never moved beyond the pilot phase.11 For instance,
in Cape Town, South Africa. It was envisioned that interdepartmental communication and
the BJA – a joint venture between Vera and the collaboration was weak and resulted in the project
South African Department of Justice and being promoted and perceived as primarily a DJCD
Constitutional Development (DJCD) – would initiative, despite the necessity of sustained
spearhead the design and implementation of cooperation and coordination with other agencies
various projects aimed at improving local such as the police and the Departments of Safety
capacities for innovations in justice administration and Security and Correctional Services. Also, much
and justice delivery in South Africa.7 The first such of the project’s funding relied on donor funds
project was the Pre-Trial Services project (PTS), raising doubts about the project’s long-term
whose purpose was to assist magistrates in making sustainability and posing serious questions
more equitable bail decisions by providing them regarding the extent to which the national budget
with independently verified information about could be truly said to address policy commitments
defendants at their first appearance.8 The provision made regarding criminal justice. Once BJA handed
of such a report firstly aimed to ensure that serious over the project, full funding from the national
or repeat offenders were not released on bail, and government became uncertain, and
secondly that petty offenders were released on although some money was allocated to the project
affordable bail or on non-financial supervisory in the national budget, none evidently trickled
conditions.9 The report was also meant to provide down to the provinces. Existing sites could draw
a fuller picture of a defendant’s overall financial from core provincial budgets in order to continue
means so as to mitigate the chance of bail amounts delivering pre-trial services, or to roll it out to other
being set too high, and to prevent the economic court centres. Given an operational environment
injustice of remanding defendants who pose no characterised by widespread resource scarcity it is
threat to public safety into custody simply for not unsurprising that there was a gradual administrative
being able to afford bail thresholds. abandonment of the PTS project across the
country.12
The PTS project – piloted in three of the country’s
busiest magistrate’s courts – produced mixed Tellingly, after BJA handed over the project to the
results. For example, whilst there was some success DJCD, no structures or supporting guidelines were
in increasing bail, and in reducing bail amounts in put into place to ensure the continued support and
Mitchell’s Plain, Durban and Johannesburg, bail participation of partner agencies critical to
amounts remained stubbornly high, and, implementation.13 Indeed, a key criticism suggested
interestingly, there was a significant increase in bail that the project’s success depended too much on its
being denied at those courts. Furthermore, at the one high profile champion, Minister Dullah Omar,
end of the pilot phase, despite the median bail and others within agency leadership, while not
amount having decreased in Mitchell’s Plain from enough had been done to recruit the support,

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cooperation and trust of key operational staff unsurprising that public anxiety regarding crime
within the various partner organisations to ensure and public safety during this time was high.
successful roll out.14
The country’s criminal justice system did little to
It should also be noted that the project’s primary alleviate the public perception that government
currency – the pre-trial report – was not properly was not doing enough to combat rising levels of
incorporated into the new Integrated Justice crime. In 2000, of the 2,6 million crimes recorded
System (IJS) technology subsequently rolled out by by the SAPS, only 610 000 cases had been referred
the IJS board. The IJS board did, however, include to the courts.17 The NPA only took on 271 000
some of the key departments and agencies that had cases, resulting in approximately 210 000
been involved in the PTS project, including the convictions. Whilst the NPA were able to get
DJCD, the Department of Correctional Services, convictions for most of the cases they prosecuted,
the National Prosecuting Authority (NPA) and the only eight per cent of recorded crimes resulted in
South African Police Service (SAPS). This was convictions.18
indicative, perhaps, of the crippling misalignment
of strategic objectives within and between erstwhile Because of the pervasive belief that the state could
partner agencies, pointing to a weakness in no longer be considered a capable guardian of
intersectoral relationships and the transient nature public safety and security, there was a concomitant
of policy commitments made across government rise in ‘community policing’ (vigilante or
departments at the time.15 otherwise) among poorer communities and a
wholesale movement towards a reliance on the
But technical and logistical considerations do not private security sector amongst the middle classes.19
fully answer why the project faltered as it did. To As communities turned inwards for solutions to
continue answering the question ‘why’, it may be remedy the problem of crime, government’s
useful to take an analytical step backwards. An ineffective handling of crime became the object of
appreciation for the political and social climate in people’s scepticism and derision. Interestingly,
South Africa during this time, particularly in according to the Independent Complaints
relation to crime and associated public Directorate, an independent police oversight body,
perceptions, fears and reactions, is particularly there was a ‘growing, popular perception that
helpful both in understanding the context in constitutional rights for criminals [were] being
which the PTS project was conceived and protected above those of their victims’.20
implemented and the external challenges it faced,
and why remand detention in general remains a As the tempo of criticism against government grew
problem in South Africa. over its (mis)handling of the crime issue, a
concerted effort was made to reassert the presence
THE SOCIAL AND LEGAL MILIEU (and relevance) of the state by broad moves to
bring itself in line with public opinion. For one,
Crime statistics and the there was a sudden militarisation of crime control
fear of crime discourse emanating from government circles. A
speech delivered in 1999 by the then Minister of
Throughout the 1990s there was a persistent Safety and Security, Steve Tshwete, is an example of
upward trend in overall levels of crime throughout such rhetoric:
the country. By the late 1990s, crime had become a
serious concern for South Africans. In 1998, for The criminals have obviously declared war
example, the SAPS reported crime figures included against the South African public. What is
88 319 instances of aggravated robbery, 24 875 required now is ruthless implementation of the
murders, 49 754 rapes, 256 434 assaults with intent NCPS [National Crime Prevention Strategy] as a
to inflict grievous bodily harm, and 360 919 matter of urgency. We are ready more than ever
burglaries.16 Faced with these numbers, it is before, not just to send the message to the

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criminals out there about our intentions, but onus’ provision was introduced. Section 60(11)
more importantly to make them feel that the tyd stipulated that, when charged with certain offences,30
vir speletjies is nou verby [the time for games is the accused was required to satisfy the court that the
over]. We are posed to rise with vigour ‘interests of justice’ did not require his or her remand
proportional to the enormity and vastness of the detention.31
aim to be achieved. We dare not disappoint our
people in this regard.21 Despite the 1995 overhaul of the bail regime, it was,
and remains, widely accepted that ‘members of the
And indeed, government spoke of ‘hitting the South African public remained convinced that the
criminals where it hurts’ and warned that ‘there right to bail was to blame for the perceived increase
will be no place to hide’.22 Battle cries for law and in crime’32 in the years that followed. The response
order, the war against crime,23 and zero tolerance24 from government was to once again amend the Act
gave inspiration to clampdowns, as well as in 1997. The 1997 amendments created an even more
saturation policing in which areas were sealed off, burdensome onus on the accused.33 Persons
people and property were searched and hundreds suspected of having committed schedule six
of people detained.25 In one such operation dubbed offences34 were to be denied bail unless ‘exceptional
‘Sword and Shield’, more than 300 000 suspects circumstances’, which satisfied the court that it was in
were arrested during 1996 and 1997.26 the interests of justice to release them, existed.35 Soon
Unfortunately, efforts to equip the courts and thereafter, a number of the bail provisions were
remand facilities were glaringly absent in the face challenged before the Constitutional Court in the
of the inevitable rise in the number of people Dlamini36 case as being infringements of the right to
arrested and detained. The consequence, of course, be released from detention if the interests of justice
was the flooding of an already over-burdened permit. The more controversial provisions up for
court system and poorly equipped prisons. challenge included the ‘reverse onus’ provisions. The
Court found that ‘to the extent… that the test for bail
The gloves were clearly off. But the tough talk and established [by the Act] is more rigorous that that
increasingly aggressive police tactics were not contemplated by section 35(1)(f)…it limits the
merely symbolic, nor were they tin-pot public constitutional right.’37 Despite this, it held, curiously,
spectacles aimed at regaining political legitimacy. that such limitations were nevertheless justified.38 In
Public concerns about safety can, and do, exert doing so, the Court placed much emphasis on the
considerable influence on the making of legislative ‘grim reality’ of crime.39
policy, and as a result, alongside the tough-on-
crime rhetoric and policing tactics, a raft of new The Dlamini judgment sparked much criticism for
legislation was speedily introduced. having surrendered to the general ‘panic and hysteria’
that existed about crime in South Africa40 and failing
The legal and judicial response to protect the fundamental right to liberty. This
‘surrender’ is all the more interesting when
Bail laws in South Africa changed radically in the comparing Dlamini to the Court’s previous decision
latter part of the 1990s. As suggested above, the in S v Makwanyane.41 There, too, the Court was
rise in incidents of violent crime and the resultant faced with the purported ‘effectiveness’ of the death
public fear during this time were, without penalty in the face of overwhelming concerns about
controversy, a significant driving force behind the violent crime and a large retentionist movement.42
enactment of increasingly harsher bail provisions.27 The Dlamini judgment remains a stand-out example
of apologist sentiment from the Constitutional Court
Historically, South African courts, recognising that that has since become renowned for having adopted
bail is an expression of the presumption of an ‘official position’ of interpretation, in which public
innocence, tended to lean ‘in favour of the liberty opinion would be of ‘little relevance in matters
of the accused’.28 In 1995, the Criminal Procedure pertaining to the interpretation of the Bill of Rights.’43
Act29 was amended and a controversial ‘reverse The Dlamini judgment did not, however, change the

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text of the legislation, and thus, as Axam makes Another (perhaps overlooked) feature of the 1998
clear, the significant legislative discretion enjoyed amendment to the Act was the establishment of the
by bail courts remains intact.44 Bail courts should Office of the Judicial Inspectorate for Correctional
therefore apply the reverse onus provision in a Services (JICS), the object of which is to ‘facilitate
flexible manner that seeks to avoid the arbitrary the inspection of correctional centres . . . [and]
detention of suspected offenders. report on the treatment of inmates in correctional
centres and on conditions in correctional centres.’49
Remand detention today The yearly reporting and critical evaluation by the
JICS of issues such as prison population trends and
Although crime in general has decreased over the prison conditions in general, means that important
last decade, the question whether South Africans information about remand detention has entered
are more or less fearful of crime has become, to the public domain. In fact, a standard feature of
some extent, a less critical factor today than it was every annual report to date has been the cautioning
in the late 1990s. This may be because enough that remand numbers are simply too high and
time has elapsed for the public to ‘evaluate’ should be reduced.50
government efforts to date. What is clear, however,
is that government’s responses in the late 1990s Recent amendments51 to the 1998 Act incorporate
made little headway in substantially reducing an additional objective into the current legislative
crime levels, and this has, ironically, made people framework, namely, ‘the management of remand
more receptive to new ideas. Moreover, there are detainees.’52 This particular inclusion has important
good reasons to believe that the current legal and symbolic value, given that South African legislation
political climate has become more encouraging of has never formally acknowledged the care and
efforts to improve the situation of remand administration of remand detainees as a ‘purpose’
detainees. This does not mean that ‘tough on of the ‘correctional system’.53 Another notable
crime’ rhetoric or actions are necessarily on the inclusion is the maximum incarceration period,
decline.45 Nor does it mean that a more which cannot exceed two years ‘from the initial
encouraging climate has been translated into date of admission…without such matter having
tangible efforts to alleviate the problems associated been brought to the attention of the court.’54 In
with remand detention on the part of the state. addition, the amending legislation also requires
Rather, incremental changes to certain legislation that the head of the prison report to the National
and policy indicate a general shift (prompted by Prosecuting Authority at six-monthly intervals on
the enactment of the final Constitution) towards cases involving remand detainees who have been
the protection of prisoners’ rights46 and an held for successive six-month periods.55 If such
awareness of conditions of detention. detention continues, the head of centre must take
such cases to court on an annual basis.56
Legislative and policy shifts
It is worth mentioning at this stage, that although a
The Correctional Services Act 8 of 1959 was mechanism such as a custody time limit is certainly
amended in 1997 and again in 1998. The a step in the right direction, especially in light of
Correctional Services Act of 1998 is a ‘complete the excessive periods of detention that South
departure from its predecessor’ in how it details Africa’s remand detainees are frequently forced to
the rights of prisoners and places the duty of their suffer, there is the risk that it will be used, simply,
protection and fulfilment firmly on the state. Put as a benchmark for the maximum time it should
differently, the new legislation, taking its cue from take to conclude a case. And two years is a very
the Constitution’s requirement that conditions of long time to wait, especially if the case is a
detention be ‘consistent with human dignity’,48 relatively simple one. This brings to light the point
created a legal framework mindful of the that, without tangible efforts, provisions like these
minimum degree of care and protection to which do not make much headway in solving the actual
detainees were entitled. problems behind high remand numbers.57 They

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remain, simply, indicators of a greater awareness of of the criminal justice system’ and received a
the problem of remand detention. Recently, during significant amount of funding.63 The Justice, Crime
April 2013, the White Paper on Remand Detention, Prevention and Security Cluster (JCPS), comprised
destined to fill the ‘policy gap’ between the of a number of relevant governmental sub-
provisions on remand detainees in the amending committees, established the Case Backlog
legislation and their implementation, was Reduction Project in 2006 with the objective of
published by DCS. The White Paper successfully assisting court centres in identifying priority areas
contextualises remand detention in domestic ‘that require...additional capacity.’ This has resulted
statutes and international law, and outlines the in the overall expansion of court capacity at
rights and various oversight instruments applicable approximately 84 regional ‘backlog courts’ through
to remand detainees. In relation to backlog and the appointment of acting magistrates as well as
overcrowding, the White Paper simply refers to the additional interpreters, clerks, prosecutors and
ATD Guidelines and lists a ‘strategy’ through which legal aid defence lawyers, so as to ensure that cases
to manage overcrowding. Curiously, it emphasises are disposed of more speedily.64 Furthermore, the
the use of non-custodial and rehabilitative-type JCPS Cluster has established a Remand Detainees
initiatives in the sentencing phase. Perhaps this is, Task Team that now requests the DCS to provide
in part, understandable, since DCS has little it, on a monthly basis, with lists of long
control over the number of remand detainees outstanding cases regarding persons still in
denied bail by the courts. Nevertheless, the White detention. The intention is that, once identified,
Paper is an important policy document indicative such cases can be independently investigated, and
of the purported commitment of DCS to the where possible, fast-tracked to a speedier
problem of remand detention. solution.65

There have, however, been some noticeable state Moving forward

efforts to reduce delays in the processing of cases in
the courts58 over the years, an indication that ‘the Despite government’s efforts and purported
long held concerns around the conditions of those ‘success-es’, remand detainee numbers remain
awaiting trial [have] finally started to make it onto alarmingly high,66 an indication that, perhaps,
the government’s radar.’59 In 2005 the NPA government efforts are simply insufficient, or, are
published a set of guidelines (ATD Guidelines) the wrong type of efforts. This begs the question,
intended to ‘sensitise prosecutors as to the various what is it that government is failing to do, or, what
options available to try to reduce the number of is it that government is doing wrong? This
awaiting-trial detainees.’60 The ATD Guidelines are, question is extraordinarily difficult to answer given
for the most part, a condensed version of the that there has been little independent evaluation of
statutory bail provisions. They do, however, offer a the above-mentioned initiatives. It may be that,
couple of meaningful recommendations to like the PTS project, which sought to remedy the
prosecutors, such as reconsidering bail if an problem of remand detention through a discrete
accused has been in custody for longer than six experiment that targeted bail hearings at first
months, and making sure that the investigations appearance, government’s efforts to date have
and presentation of the state’s evidence are fast- failed to establish a broader and more coordinated
tracked in such matters.61 But even as early as 1999 strategy of reforms that engage the whole criminal
to 2000 the NPA was making a concerted effort to justice continuum and, concurrently, at each
combat case backlogs. Such efforts included the criminal justice entry or exit point. Perhaps part of
institution of Saturday courts and the deployment the answer lies in the Public Service Commission’s
of more experienced magistrates and court officials 2011 findings, that it is the ‘lack of coordination
to the busier court centres in the country.62 and cooperation of the wide array of institutional
role players involved in the delivery of judicial
In fact, in the seven-year period between 2001 and services’ that creates systemic challenges which are
2008, ‘the reduction of backlogs was a major focus major contributors to the backlog cases.’67

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With this in mind, there are perhaps a few lessons investigations.72 This kind of information suggests
that can be drawn from the success of the Port that meaningful reforms aimed at reducing the
Elizabeth IJS Court Centre Project (IJSCCP). As length of time that suspects remain in remand
mentioned above, portions of the PTS pilot project detention in Durban would necessarily include a
were adopted and amended in Port Elizabeth court processing component. By contrast, in
through the IJSCCP. The IJSCPP, like the PTS Mitchell’s Plain, such reforms would need to
Project, aimed to reduce the amount of time spent include efficiencies within SAPS investigatory
in prison by prisoners awaiting trial; but unlike the strategies, and perhaps an integrated investigatory
PTS project, the pre-trial element was, and approach that involved prosecutors to a greater
remains, one of many components. For example, degree.
court processing and persistent court backlogs
were immediately identified as a contributing Certainly, it seems, the political will to improve
factor to lengthy remand detention in Port remand detention is no longer lacking. This is a
Elizabeth’s court system. Thus, to streamline court key factor when it comes to the sustainability of
processing, the IJSCCP established a channelisation any pre-trial services endeavour. And given what
court as well as a periodical court at St Albans we know about the Port Elizabeth project, an
Prison – the main feeder of prisoners to the Port important part of its success has been its longevity.
Elizabeth Magistrates Court – to deal exclusively This is where the extent to which the project was
with non-trial matters, such as remands, bail localised becomes so important. A blanket national
applications, and pleas. In addition, the Port policy cannot be effective unless it is responsive to
Elizabeth Court Centre prioritises cases involving the needs of each particular court centre, which
remand detainees. These cases are identified and may entail additional resources to services not
reviewed, and through this process, frivolous traditionally ascribed to ‘courts’ as such. For
charges, or cases with insufficient evidence, are example, the problem of backlogs caused by ‘the
withdrawn and the detainee is released.68 The accused not appearing in court’, (indicated in the
project is therefore notable for its integrated 2007 findings on reasons for postponements in the
approach and remaining responsive to the localised Durban courts) could be alleviated by a very
needs of the particular criminal justice system and simple transport service from various points in the
community in Port Elizabeth. community to court, or to a police station.

The IJSCCP, in a broad sense, sought to identify What we don’t know about the current
and resolve blockages throughout the various government Court Backlog Project is to what
points in the criminal justice system. This required extent it is responding to the needs of each court
a coordinated strategy to tackling the problem, centre. This would entail, of course, a certain
making close collaboration between the DJCD, the amount of research into how each court functions.
DCS, and SAPS critically important. Based on But given the extent to which it has been shown
admittedly not so recent data, the project yielded that court centres operate differently from one
‘promising results’:69 a reduction in the time taken another, such research would be invaluable.
to prepare a docket for trial, facilitated bail
applications and improved docket quality, all of CONCLUSION
which resulted in a reduction in the number of
remand detainees.70 Furthermore, support for a Seventeen years into our constitutional democracy,
localised and integrated approach can also be the political and legislative playing field in South
assumed from 2007 research data where it is clear Africa is very different to what it was in the late
that the reasons behind court backlogs vary 1990s. A justiciable Bill of Rights has influenced
significantly between court centres. For example, it not only the content of new legislation, but also an
was found that reasons driving postponements in awareness of the rights of vulnerable and
Durban were trial-related,71 while postponements marginalised groups. When it comes to remand
in Mitchell’s Plain were due to delays in detainees, however, the problems that existed back

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then, remain, albeit to a slightly lesser degree. To comment on this article visit
http://www.issafrica.org/sacq.php
And, as is the case with many human rights
concerns, the poor, who cannot afford bail or the
services of a lawyer, suffer the worst of the effects NOTES
of remand detention.74 The excessive reliance on 1. R Paschke, Process and Impact Assessment of the Pre-
remand detention also comes at a great cost to the Trial Services Demonstration Project, Bureau of Justice
citizenry: the government spends approximately Assistance Report, 3, March 1999.
2. See generally, M Schönteich, Making Courts Work:
R2,2 million per day incarcerating people who A Review of the IJS Court Centre Project in Port
have been granted bail but are unable to afford Elizabeth, Institute of Security Studies Monograph, 75,
it.75 October 2002.
3. Between 1995 and 2000 the remand detainee increased
by 64%, from 24 265 in January 1995 to 63 964 in April
The problem of remand detention seems even 2000. Since then, the population has remained somewhat
more urgent when one considers that most stable, though still high, at 49 695 as of 28 February
2011. Currently, remand detainees constitute 30% of the
remand detainees should not be in detention.76 As total inmate population. Statistics are drawn from the
Berry describes, ‘[t]hey post no threat to society Annual Reports of the Judicial Inspectorate of
and are not at risk of absconding.’ Why then, Correctional Services. All Annual Reports are available
on the Office of the Judicial Inspectorate’s website:
when South Africa has an environment so http://judicialinsp.dcs.gov.za/Annualreports/annual
conducive to change, is the remand detainee report.asp. See also the Department of Correctional
population still as high as it is? The answer, of Services Management Information System (MIS)
available at http://www.dcs.gov.za/AboutUs/Statistical
course, is not contained as a single solution, but it Information.aspx. See also C Ballard, A Statute of
is not very difficult. The entire criminal justice Liberty, South African Journal of Criminal Justice, 25(1)
sector, which, in this context, includes the DJCD, (2012), 24.
4. Idasa, Is Crime Dividing the Rainbow Nation? Afro-
SAPS, the NPA and perhaps even the barometer Briefing Paper No. 96: November 2010; See
Departments of Transport and Social also I Matthews, Government Responses in South Africa:
Development, is over-burdened, under-resourced Policy and Implementation and E van der Spuy, Crime
and its Discontent: Recent South African Responses and
and, perhaps, disorganised. And a national Policies, Crime and Policing in Transitional Societies, 30
blanket policy designed to alleviate this burden August – 1 September 2000, Jan Smuts House, Wits,
that fails to take into account the particular Johannesburg: http://www.kas.de/db_files/dokumente/
7_dokument_dok_pdf?4865_2.pdf
processes of each court centre, will not be nearly 5. L Ehlers, Frustrated Potential: The Short and Long
as efficient as a policy that does. Term Impact of Pretrial Services in South Africa, Justice
Initiatives: Pretrial Detention, Open Society Justice
Initiative, 2006, 123.
While we can only speculate about the specifics of 6. T Amupadhi, Mamokgethi: and justice for all? Weekly
the current Court Backlog Project, we do know, Mail & Guardian, 31 July 1998.
based on the Vera PTS project and 2007 research 7. The other demonstration projects included the Thuthu-
zela Care Centres, as part of a prosecution-led anti-rape
data, that the particularities of each court centre strategy, a prosecution task-force on carjacking, and a
vary considerably. This has obvious implications project that aimed to help two justice centres implement
when it comes to designing a backlog reduction plea-bargaining legislation.
8. A 1998 survey indicated that more than 60% of respon-
model for court centres, and energy is perhaps dents felt unsafe walking alone in their own area after
better spent on investigating these differences dark. Similarly, in 1997, 80% of whites and Indians,
before attempting to address the problem head 60% of coloureds and 40% of blacks were concerned for
their own personal safety. See Benjamin Roberts, Fear
on. The seemingly simple task of designing a Factor: Perceptions of Safety, in B Roberts and M Kivilu
model based on the actualities of a court centre et al (eds), South African Social Attitudes: 2nd Report:
that is sufficiently flexible so as to respond to the Reflections on the Age of Hope, HSRC Press 2010, 250,
254.
changing demands of a particular community, 9. Ehlers, Frustrated Potential, 125.
may well be the tangible bridging between the 10. Paschke, supra note 3, at 35.
somewhat abstract notions of the Bill of Rights 11. Ehlers, Frustrated Potential, 128-134.
12. Ibid.
and the reality experienced by remand detainees 13. Ibid, 132.
in South Africa. 14. Ibid, 134.

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15. Ibid, 130-1. 1997 case in which a six-year-old girl, Mamokgethi

16. Crime Statistics 1994-2003, Institute for Security Malebane, was raped and murdered by suspected
Studies, http://www.iss.org.za/CJM/stats0903/index.htm offenders who had been released on bail. See also,
17. M Schönteich, Criminal Justice Policy and Human Tangeni Amupadhi, Mamokgethi: and justice for all?
Rights in the New South Africa, Queensland University Weekly Mail & Guardian, 31 July 1998.
of Technology Law and Justice Journal, (2003) 333, 334. 33. Criminal Procedure Second Amendment 1997 (Act 85
See also R Paschke, Conviction Rates and Other of 1997).
Outcomes of Crimes Reported in Eight South African 34. Schedule six offences include crimes such as premedi-
Police Areas, South African Law Commission, Research tated murder and gang rape.
Paper No. 18, Project No. 82. 35. Notably, Sarkin et al in The Constitutional Court’s bail
18. M Schönteich, Criminal Justice Policy and Human decision: Individual Liberty in Crisis, 297, make the
Rights in the New South Africa, 21. A more recent point that, in their view, this section is ‘more onerous
study of three magistrate’s courts found that than the bail laws under apartheid applicable to the
approximately 54% of charges were ultimately same (non-political) crimes and that the only provision
withdrawn or struck off the roll in 2007. This suggests “more draconian were those relating to detention
that deep deficits in police investigatory capacities, as without trial of people accused of political offences.’
well as prosecutorial ability to convict, remain 36. S v Dlamini; S v Dladla and Others; S v Joubert; S v
challenges to be tackled by today’s government. See V Schietekat 1999 (4) SA 623 (CC).
Karth, M O’Donovan and J Redpath, Between a Rock 37. S v Dlamini at para 65.
and a Hard Place: Bail Decisions in Three South Africa 38. Section 36 of the Constitution permits the limitation of
Courts, Open Society Foundation for SA, 2008. a right in the Bill of Rights ‘to the extent that the limit-
19. Sekhonyane and Louw discuss in detail the history of ation is reasonable and justifiable in an open and demo-
South African vigilantism and, in particular, its rise in cratic society based on human dignity, equality and free-
the post-1994 period as a response to ‘poor poor dom, taking into account all relevant factors, including:
delivery of services associated with safety’. M Sekhon- the nature of the right; the importance of the purpose of
yane and A Louw, Violent Justice, Vigilantism and the the limitation; the nature and extent of the limitation;
State’s Response, ISS Monograph 72, 2002, http://www. the relation between the limitation and its purpose; and
issafrica.org/publications/monographs/ monograph-72- less restrictive means to achieve the purpose.’
violent-justice-vigilantism-and-the-states-response- 39. S v Dlamini at para 66. At para 55 the Court stated:
makubetse-sekhonyane-and-antoinette-louw; Van der ‘The ugly fact remains, however, that public peace and
Spuy, Crime and its Discontent, 171. security are at times endangered by the release of
20. M Schönteich, Criminal Justice Policy and Human persons charged with offences that incite public outrage.’
Rights in the New South Africa, 335. 40. See generally, Sarkin et al, The Constitutional Court’s
21. Steve Tshwete, Minister of Safety and Security, Remarks bail decision: Individual Liberty in Crisis, 297.
at a Parliamentary Briefing, 28 June 1999. 41. S v Makwanyane 1995 (3) SA 391 (CC).
22. Matthews, Government Responses in South Africa, 188. 42. The difference in approach is best captured in the
23. Van der Spuy, Crime and its Discontent, 171. following dicta (S v Makwanyane, para 88):
24. Ibid. See also B Dixon, Zero Tolerance: The Hard Edge ‘Public opinion may have some relevance to the enquiry,
of Community Policing, African Security Review, 9(3) but in itself, it is no substitute for the duty vested in the
(2000), 73-78. Courts to interpret the Constitution and to uphold its
25. Van der Spuy, Crime and its Discontent, 171. provisions without fear or favour. If public opinion were
26. Matthews, Government Responses in South Africa, 188; to be decisive there would be no need for constitutional
J Burger, Crime Combating in Perspective: A Strategic adjudication.... The very reason for establishing the new
Approach to Policing and the Prevention of Crime in legal order, and for vesting the power of judicial review
South Africa, International Police Executive of all legislation in the courts, was to protect the rights
Symposium, Working Paper 10, 16 (2007). of minorities and others who cannot protect their rights
27. The role of crime and the fear of crime is discussed in adequately through the democratic process. Those who
J Sarkin, E Steyn, D Van Zyl Smit, R Paschke, The are entitled to claim this protection include the social
Constitutional Court’s bail decision: Individual Liberty outcasts and marginalised people of our society. It is
in Crisis?, South African Journal of Human Rights, 16 only if there is a willingness to protect the worst and the
(292) (2000), 294. weakest amongst us, that all of us can be secure that our
28. Sarkin et al, The Constitutional Court’s bail decision: own rights will be protected.’
Individual Liberty in Crisis, 296. 43. M Du Plessis, Between Apology and Utopia – the
29. 51 of 1997. The amending law was Criminal Procedure Constitutional Court and Public Opinion, South African
Second Amendment Act 75 of 1995. Journal of Human Rights (18) (2002), 1, 2.
30. Section 60(11) referred to ‘schedule 5’ offences, 44. H Axam, If the Interests of Justice Permit: Individual
typically more serious crimes such as murder and rape. Liberty, the Limitations Clause, and the Qualified
31. These amendments incorporated a preventative Constitutional Right to Bail, South African Journal of
dimension to the bail enquiry, i.e. someone who might Human Rights, 17 (2001), 320 and 339.
commit a further crime could be detained on remand, 45. For example, Police Minister, Nathi Mthethwa, on 24
as opposed to someone who might evade trial or posed May 2011, was reported saying that government was
a threat to witnesses or the trial process. looking into amending the bail legislation so as to curb
32. Sarkin et al, The Constitutional Court’s bail decision: the repeated granting of bail to serial offenders. SAPA,
Individual Liberty in Crisis, 297. The authors refer to News24, 10 May 2011, http://www.news24.com/South

SA Crime Quarterly no 44 • June 2013 23

CQ No. 43 June 2013 6/27/13 12:06 PM Page 26

Africa/Politics/Bail-legislation-ripe-for-change- 59. Excerpt from T Ramagaga, The conditions of Awaiting

Mthethwa-20110510 (accessed on 19 April 2013). Trial Prisoners look set to improve in South Africa,
46. The 1998 Act refers to ‘inmates’, which is defined in Institute for Security Studies, News on ISS Africa, 7
section 1 of the 1998 Act as ‘any person whether March 2011.
convicted or not, who is detained in custody in any 60. Awaiting Trial Detainee Guidelines http://www.npa.gov.
correctional centre or who is being transferred in za/UploadedFiles/ATD%20Guidelines%20%283c%29%
custody or is en route from one correctional centre to 20doc%20final.pdf (accessed on 12 May 2013).
another correctional centre.’ 61. ATD Guidelines, 19-20.
47. See Chapter Three of the Correctional Services Act 62. I Matthews, The National Prosecuting Authority in C
(1998), ‘Custody of Inmates Under Conditions of Gould (ed), Criminal (in)justice in South Africa: a civil
Human Dignity’. society perspective, Institute for Security Studies, 2009.
48. Section 35(2)(e) of the Constitution, 1996. 63. Ibid.
49. Section 85(1) of the Correctional Services Act 1998. 64. Since its inception, 32 650 cases have been finalised as a
50. All Annual Reports are available on the Office of the result. See http://www.justice.gov.za/newsletter/JT/
Judicial Inspectorate’s website: http://judicialinsp.dcs. JT2009_Vol5.pdf See also South African Government
gov.za/Annualreports/annualreport.asp. See also, On Information, http://www.info.gov.za/aboutgovt/justice/
the record: Interview with Judge Deon van Zyl, South system.htm (accessed 12 May 2013).
African Crime Quarterly, 30 (2009), 45, 46. 65. Parliamentary Question, Court Backlogs, DefenceWeb,
51. The amending legislation is the Correctional Matters http://www.defenceweb.co.za/index.php?option=com_
Amendment Act 2011 (Act 5 of 2011). content&view=article&id=14215:parliamentary-
52. Section 2(d) of the Correctional Services Act 1998. question-doj-court-backlocks&catid=86:parliamentary-
53. Prior to the Correctional Matters Amendment Act questions&Itemid=187 (accessed on 19 April 2013).
2011, Section 2 of the Correctional Services Act 1998 66. Department of Correctional Services Management
read:
Information System, http://www.dcs.gov.za/Web
The purpose of the correctional system is to contribute
Statistics/ (last accessed on 6 June 2011). With a
to maintaining and protecting a just, peaceful and safe
remand detainee population of 46 432, this is still
custody by enforcing sentences of the courts in the
almost double the Department of Correctional Services’
manner prescribed by this Act; detaining all inmates
proposed benchmark figure of 25 000. As mentioned
in safe custody whilst ensuring their human dignity;
above, remand detainees constitute about 30% of the
and promoting the social responsibility and human
total prison population. When compared to the
development of all sentenced offenders.’
population ratios of other African countries, this is not
54. Section 49G(1) of the Correctional Matters
a particularly large number (See International Centre
Amendment Act 2011.
for Prison Studies, http://www.prisonstudies.org/info/
55. Sections 49G(2) – (5) of the Correctional Matters
worldbrief/wpb_stats.php?area=all&category=wb_pre
Amendment Act 2011.
trial.) However, in at least two thirds of the country’s
56. The reporting procedure, while a step in the right
most overcrowded prisons, the occupancy rates of
direction, remains weak: the amendment sets out the
which range from 200-250%, the remand detainee
procedure to bring an accused before a court, it does
not, however, explain what the court must do. The population are the obvious driving factor behind such
court may indeed end up postponing a case for a overcrowding. See The Judicial Inspectorate for
further six months without interrogating the reasons Correctional Services 2010/2011, Annual Report, 13.
for the delay, as provided for in section 342A of the 67. Public Service Commission, Report on Inspections of
Criminal Procedure Act 1977. Regional Courts: Department of Justice and
57. The problem of creating aspirational targets or Constitutional Development, 2011, http://www.psc.gov.
benchmarks from sources unintended to be so is za/documents/2013/FINAL%20REPORT%20DOJCS%
illustrated well in S v Jackson. 2008 (2) SACR 274 (C). 20NATIONAL%20%28C%2926%20JAN%20%202012%2
In this case, Mr Justice Moosa included in his 0docx.pdf (accessed on 12 May 2013).
judgment a table setting out the average amount of 68. M Schöenteich, Criminal Justice Policy and
days it took to reach various pre-trial and trial stages, Human Rights in the New South Africa.
which he then used as a benchmark to determine 69. V Karth et al, Between a Rock and a Hard Place:
whether the delays in the case before him were Bail Decisions in Three South Africa Courts, 12.
‘unreasonable’. He concluded that they were not, given 70. Ibid.
that they did not exceed the reported average. 71. Karth et al, Between a Rock and a Hard Place, 28.
58. Courts themselves have also exhibited frustration with 72. Karth et al, Between a Rock and a Hard Place, 26.
the extent to which institutional and systemic delays 73. Karth et al, Between a Rock and a Hard Place, 27.
affect the accused person’s right to ‘have their trial 74. The wide range of effects of remand detention are
begin and conclude without unreasonable delay’ described in D Berry, The Socioeconomic Impact of
(section 35(3)(d) of the Constitution) and the right Pre-trial Detention: A Global Campaign for Pre-trial
‘not to be deprived of freedom arbitrarily or without Justice Report, Open Society Foundation and United
just cause’. (Section 12(1)(a) of the Constitution). See Nations Development Programme, 2011.
for example S v Maredi 2000 (1) SACR 611 (T) where 75. D Berry, The Socioeconomic Impact of Pre-trial
the accused had been kept in custody for 17 months Detention, 40.
before the charge was put to him. 76. Ibid.

24 Institute for Security Studies