Oil the wheels of justice where it matters most: Robyn Leslie

Published in the Mail & Guardian on 13 April 2012

IN THE FURORE over judicial review of the Constitutional Court and the Supreme Court of Appeal, a crucial elephant in the room has been over-looked. Reviewing the media and government statements on this issue, there was only a single reference to one of the criminal justice system’s most pressing and critical issues: the lower courts, the domain of magistrates.

It came in a passing comment, Justice Department spokesperson Tlali Tlali mentioned that there may be a need to conduct a similar exercise, under different terms and at a later stage, at lower courts.

“May be”? This judicial review wants to ensure that South Africa is protecting and promulgating the values of our Constitution through our judiciary. Review is a good idea, and there may well be a place for this in our highest courts. But the priority of such a review must be questioned. Why focus on the most esteemed and high-profile courts first?

Accessing the Constitutional Court and the SCA must be a theoretical reality for our judicial system to work, but the spanner in the works when accessing the justice system does not occur at this level: it occurs in magistrates courts, where missing dockets, absent personnel and over-worked magistrates try to manage court rolls of overflowing dimensions.

A judicial review should be investigating the chronic material and human resource obstacles to justice at the courts with the highest caseload. The development of jurisprudence that upholds socio-economic rights is crucial – but remains irrelevant if those meant to be enjoying such jurisprudence cannot access fair judicial procedure in their magistrate courts due to inefficiency and chronic under-staffing. As one magistrate explains:

‘Magistrates do about 10000/12000 cases a year; regional magistrates 2000/4000; a judge 200/300 – and the percentage decreases the higher you go. We see many more people than any other court.’

To illustrate this human resources predicament, a court official explains why non-financial bail, allowing poor detainees who qualify for bail to be released, simply doesn’t work:

‘For example, in some regions we would be looking at about 20 probation officers for 5000 detainees released on non-financial (reporting conditions). How could we manage this?

Imagine a court case postponed three times because a translator is not available; imagine an appeal on a petty theft conviction unable to proceed because a docket is lost; imagine not speaking to a lawyer except for a few whispered words from a harassed legal professional before your name is called for your bail hearing; imagine eight months in a remand detention facility in a case of mistaken identity.

Entering a magistrates court as an accused is like entering a parallel universe of protocol, where English is the language of instruction and the microphone designed to give your voice to the proceedings is broken. How does someone access justice here, where there are no safeguards, no friends of the court, and where journalists and voyeurs are the only lookers-on? Accessing justice in this first instance is blocked by a range of pressing issues including translation, access to a lawyer and explanation of procedure. Accessing justice here should be the priority – not walking through the doors of the Constitution Hill.

The Department wants to know about the length of trials and the time it takes to make a judgement at our highest courts. But they should be asking remand detainees who have had their cases endlessly postponed why they remain in custody for months -in many cases, years. For some, bail cannot be fixed without certain criteria being met – including the establishment of a fixed address and a formal ID documentation process.

These simple tasks can be very complicated exercises for a magistrate: due to a lack of integration between Home Affairs, Department of Correctional Services and the South African Police Service, if an accused is a foreigner, simply determining if their permits are valid can take up to six weeks. Determining fixed addresses involves a clipboard, a bakkie and a staff member available to travel to whatever location has been stipulated. And if bail is denied, detainees must wait until witnesses that are no-shows can be found, arresting officers are reminded to attend court and the magistrates’ gigantic court rolls allow space for the trial.

Lastly, the issue of court visibility needs to be considered. The profile of the Constitutional Court and the SCA are undoubtedly higher than the profiles of the numerous magistrates courts of South Africa.  This is a real problem with our criminal justice system, and a look at the absentee rate for lawyers and other court personnel at a magisterial level would be telling. With no visibility comes less accountability, and a consequent decline in the passion, commitment and inclinations of some magistrates court officials to do their work well, under extremely trying circumstances.

More judicially worrying is the case of a magistrate in a rural district, who must preside over a bail hearing – and then must also preside over the trial of the same accused. What happened, he might ask, to the judicial tenet of non-bias and approaching a trial without prejudice and prior knowledge? The accused must either be transported over 150 kilometres to another court – or this magistrate must sit in judgement to the best of his ability. Who knows about him and his judicial predicament? Who cares?

The purpose of a lower court review would be to uncover these pressing issues. Not a witch-hunt against those working under difficult circumstances with the scantest of resources, but an intervention to help lower courts function as effectively and with as much principle as the Constitutional Court. This should be the priority.

It may be that there are many well-founded reasons for this review taking shape at our highest, not lowest, courts. But a commitment from the Department of Justice to review and support the structures of justice that most South Africans face would be a more tangible commitment to their call for us to ‘stand together for right.

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About witsjusticeproject
The Wits Justice Project combines journalism, advocacy, law and education to make the criminal justice system work better for all.

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