The state of policing in South Africa (infographics)

Our Legal Intern Thandeka Kathi has produced these infographics on the state of policing in South Africa, based on the article  “Police top brass under fire”  by Denise Williams of TimesLive.

1. “Of the 23960 detectives in the country, 19235 were only trained in basic crime investigations.”

 

2. “Of the 1133 station commanders, only 817 had completed the required training course.”

3. “Another contentious issue was the late implementation of e-dockets”.  The e-docket system is supposed to take over the existing manual docket system in police stations. So far, out of the 79 police stations that the e-docket scanners were rolled out to, they are only operational in 20. 

4. “In the crime intelligence unit, there were 7938 members, but only 1019 had security clearance certificates.” Security clearance certificates are given to people who have passed security screening process.

Where does South Africa rank internationally in respecting the rule of law?

A new report shows how South Africa compare to other countries (Photo: Holy Trinity Gateshead UK)

A summary of the World Justice Project Rule of Law Index 2012-2013

By Thandeka Kathi

The World Justice Project (not to be confused with the Wits Justice Project) has conducted interesting research on how countries around the world compare in terms of respecting the rule of law.

The World Justice Project is a non-profit organization which works to strengthen the rule of law throughout the world.

The rule of law is based on the principle that no-one is above the law, that the law should be based upon principles which can be discovered, and that laws are created through identifiable processes and not at an individual’s will. “It safeguards against arbitrary governance, dictatorship and mob rule and is central to the stability of government, the preservation of human rights and the economic and social development of society” (LexisNexis, 2012).

I have highlighted some of their findings about South Africa with regard to open governance, security, corruption and the criminal justice system.

Open Government – South Africa has a relatively open government; it ranked 27th in the world, 5th among upper middle income countries and 2nd in Africa. Laws are said to be stable and people can effectively petition to the government and participate in policy discussion.

Sixty-one percent of South Africans surveyed said their local government works “very well” or “fairly well” in providing effective ways to make complaints. Sixty percent said their local government performs “very well” or fairly well” in responding to people’s concerns about community matters. South Africa is 3rd among upper middle income countries when it comes to open government.

Order and Security – Burglary is a problem in South Africa, with 26% of households saying they have been victimised in the last 3 years. This is the 2nd highest rate among upper middle income countries.

South Africa has the 3rd highest murder rate among upper middle income countries.

Vigilante justice is a serious problem, with 54% of the South Africans surveyed reporting that they would rather have a criminal who has committed a serious crime be  beaten by the people than hand him/her over to the authorities unharmed.

Absence of Corruption – Only 5% of South Africans answered “yes”  when asked if they had had to pay a bribe to receive medical attention at a public hospital. However, South African experts answered that government officials are “very likely” to divert public funds for personal use.

Criminal Justice – South Africa was ranked 13th among other upper middle income countries in the delivery of criminal justice. Experts believe that the two key problems faced by correctional institutions are poor rehabilitative programs and recidivism.

Visit the World Justice Project Rule of Law Index 2012-2013 website.

Thandeka Kathi is the Legal Intern at the Wits Justice Project.

My two cents’ worth on Oscar’s bail decision & appeal against bail conditions

Oscar’s Oscar Pistorius at his bail hearing earlier this year. (Photo: News 24)

by Thandeka Kathi

The Oscar Pistorius murder case has received a lot of attention over the past month, both nationally and internationally. It has, for the most part, highlighted problems such as high levels of domestic violence, gender-based violence, and murder rates that plague South Africa. This has raised the question whether post-apartheid South Africa can still be seen as society based on democratic values, social justice and fundamental human rights. This is especially so with the recent media reports of widespread violence against women which has created the perception that there is no justice for victims.

It would be premature to say that justice has not been done in the Oscar Pistorius case because he has not been tried in a court of law. While I understand the public outrage over his release on bail, I cannot join the chorus of people who say that the outcome of his bail hearing was flawed and unjust. I think that Magistrate Desmond Nair’s decision was correct and based on legal precedent. However, Oscar’s appeal against his bail conditions should be dismissed, in my opinion.

One must remember that the role of a Magistrate at a bail hearing is not to determine whether the accused is innocent or guilty, but to determine whether it is in the interests of justice to release the accused. The accused has a constitutional right to be presumed innocent until proven guilty. This right is accompanied by the right to be released from detention if it is within the interests of justice, subject to certain conditions that the court may impose.

The Criminal Procedure Act (CPA) gives examples of when it might not be in the interest of justice to grant an accused bail: if he or she poses a risk to a certain individual or the public; if there is a possibility of the accused evading trial; if there is a possibility of the accused interfering with witnesses or tampering with evidence; if his release would undermine the objectives of the criminal justice system or disturb public order. Therefore, if an accused can show that he will not interfere with the evidence, evade trial or threaten witnesses, then he must be released on bail.

There was an uproar over the fact that Oscar, who was charged with a Schedule 6 offence, was granted bail even though he could not show “extra-ordinary” circumstances which are above and beyond those that are listed in the CPA.  An accused charged with a Schedule 6 offence has to show exceptional circumstances which permit their release. However, the Constitutional Court has in the past said that “In requiring that the circumstances prove to be exceptional, the section does not say that there must be circumstances above and beyond and generically different from those enumerated” [in Section 60 of the CPA]. Therefore, the magistrate was correct in placing a lot of weight on the reasons given by the defence as to why Oscar would not be a flight risk, threaten witnesses or tamper with evidence.

The bail conditions that the defence and prosecution agreed upon were in line with the purpose of bail. For example, Oscar had to surrender his passports and report to a probation officer to ensure that he does not flee. He had to move out of his home, which was also the scene of the crime, to ensure that he would not tamper with any evidence or threaten witnesses. In agreeing to comply with these conditions, Oscar was able to satisfy the court that he should be granted bail.

What I personally find astonishing is the fact that Oscar now wants to appeal these conditions.

He wants to get his travel documents back, he does not want to report to a probation officer and he wants the blanket prohibition from communicating with his neighbours removed. He feels that it is unfair and unwarranted for him to have to report to a probation officer, to be denied access to his home, and to be prevented from speaking to his neighbours. What Oscar fails to realise is that the conditions that he wants to appeal are the probably the reason why he was granted bail in the first place.

For instance, if he is given back his travelling documents then there is a greater chance of his evading trial. If he is allowed access to his home, then there is a possibility of him tampering with evidence and if he is allowed to speak to his neighbours then he might interfere with witnesses. It seems like Oscar wants things to go back to normal but, according to his own affidavit, he killed someone and until we can be certain that “it was an accident”, he has to forgo some of his freedoms. To decide otherwise would be denying justice to Reeva Steenkamp and all the other victims of violence.

Thandeka Kathi holds an LLB from Rhodes University and is the Legal Intern at the Wits Justice Project. 

Wits Justice Project video: community paralegals in Orange Farm

Community paralegals at work (Photo: Timap for Justice)

Watch Paul McNally’s video on community paralegals, made after the Wits Justice Project’s recent breakfast discussion on community paralegals in South Africa.

McNally interviews Bricks Mokolo of the Orange Farm Human Rights Advice Centre about the centre’s work, funding challenges and a recycling initiative to raise money for the centre.

WJP coordinator Nooshin Erfani-Ghadimi also features in the video, arguing that community paralegals can relieve some of the pressure on SA’s criminal justice system and make it more effective.

Watch the video.

Related resources:

Outcome report: Justice for Breakfast discussion on community paralegals in SA 

Bringing the law to the people: The role of community paralegals in our country by WJP legal intern Thandeka Khati 

Community paralegals may improve access to  Justice in SA by WJP journalism intern Hazel Meda (published in the Saturday Star) 

 

Bringing the law to the people: The role of community paralegals in our country

Community paralegals have assisted many people in Sierra Leone. (Photo: Timap for Justice)

By Thandeka Kathi, Legal Intern at the Wits Justice Project

The marginalized people in society rarely have access to justice because they face many impediments, such as lack of knowledge of the law. When they do know their rights, they cannot afford the services of a lawyer. When lawyers are available pro bono they are usually out of reach, because their offices are based in the cities.

This is a flaw in our legal system. On one hand we have a legal system which boasts one of the best constitutions in the world. But on the other hand we have people who do not have access to legal remedies.

This is where community-based paralegals can help, especially in rural settings.

I recently attended a Justice for Breakfast event on the role of community-based paralegals, held by the Wits Justice Project and the Wits Graduate School for Public and Development Management. Before this event, I did not know that this branch of paralegals existed. I thought that paralegals worked in law firms and banks to help attorneys with legal research and so forth.

I learned that there is no agreed-upon definition of what a community-based paralegal is. According to the World Bank “Definitions vary, but roughly a community-based paralegal is a person trained in law and the workings of government who employs tools like education, mediation, advocacy, and organizing to address instances of injustice”.  Therefore, a community-based paralegal is more than a legal assistant. At the roundtable there was much debate as to whether a common definition of the term “community paralegal” is needed or if we leave it as it is because a broad definition gives the community access to individuals who possess a variety of skills.

While I acknowledge the importance of community-based paralegals and the positive impact they have, especially in rural communities, I am also concerned about the negative impact they might have.

The law is a complicated machine that has to be operated with the utmost care. I am fearful that people who have not received training in the law can give legal advice. My concerns were echoed by Ruby Matthys, who represented the Association of Regional Magistrates of Southern Africa. She warned that the community is vulnerable to people who may not be qualified to give legal advice and who are not held accountable for the advice that they give.

The regulation of paralegals is essential to ensure that the community is protected. The second draft of the Legal Practice Bill does not include the regulation of paralegals. The Law Society of South Africa, in its submissions about the Legal Practice Bill lists the exclusion of community-based paralegals from the Bill as positive. I do not understand why this is viewed as positive because leaving community-based paralegals unregulated makes communities vulnerable to unqualified people posing as community-based paralegals.

In my opinion, community-based paralegals should be regulated because they play a vital role in bringing justice to the people. In the words of one roundtable participant, “Community-based paralegals can be traced to the 1980s. They are resilient and are not going anywhere”. Therefore they should be regulated like all other professions.