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South Africa Justice Sector and the Rule of Law A review by AfriMAP and Open Society Foundation for South Africa OPEN SOCIETY FOUNDATION Copyright © 2005 by the Open Society Foundation for South Africa. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form, or by any means, without the prior permission of the publisher. Published by: Open Society Foundation for South Africa ISBN: 1-920051-22-8 For more information, contact: AfriMAP Open Society Foundation 5th Floor, Cambridge House 100 Cambridge Grove London, W6 OLE, United Kingdom www.afrimap.org Open Society Foundation for South Africa Colinton House, The Oval 1 Oakdale Road Newlands, 7700, South Africa www.osf.org.za Design by: Jeanne Criscola/Criscola Design, New York Layout and printing by: Compress, South Africa Cover image: Headband, 20th century Ndebele; South Africa Glass beads, fiber 20 1/4 x 2 1/2 in. Collection of the Orlando Museum of Art, gift of Norma Canelas and William D. Roth Contents List of case studies v List of acronyms vi Acknowledgements viii Preface ix Foreword x Executive summary 1 1 Legal and institutional framework 3 A. International law, the Constitution and national legislation 3 B. Structure of the court system 15 C. Reform of the legal sector 22 2 Government respect for the rule of law 25 A. The legislative process 25 B. Executive compliance with the law 27 C. Investigation of executive action: commissions of enquiry 32 D. Pardons and amnesties 35 3 Management of the justice system 39 A. Planning and financial management 39 B. Court administration 46 C. Availability of legislation and jurisprudence 50 D. Access to information about the courts 52 4 Independence and accountability of judges and lawyers 55 A. Judges and magistrates 55 B. Lawyers 66 5 Criminal justice 70 A. Protection from crime 70 B. Policing 73 C. Fair trial 85 D. Appropriate remedies and sentencing 92 E. Prisons 97 F. Non-state action against crime 104 6 Access to justice 108 A. Knowledge of rights 108 B. Physical access 109 C. Financial access 110 D. Right to appear/jurisdictional restrictions 117 E. Delays in court proceedings 118 F. ‘Traditional’ justice systems 118 G. Respect for court orders 122 H. Official mechanisms to assert rights outside the court system 123 I. Non-state mechanisms and alternative dispute resolution 131 7 Development assistance 132 Annexes Annex A: Human rights treaties 134 Annex B: Notable laws affecting the justice system 139 Annex C: Court structure 141 Annex D: Sources on management of the justice sector 146 Annex E: Policing in South Africa 148 List of case studies Successful institutional reform—sexual offences courts 23 Government’s failure to comply with the Grootboom judgment 31 The Schabir Shaik and Jacob Zuma prosecutions 34 Media access to court hearings 53 Transformation of the judiciary in South Africa 62 The effect of the introduction of minimum sentencing on prison overcrowding 96 People Against Gangsterism and Drugs (PAGAD) 106 Access to justice for immigration detainees 115 SOUTH AFRICA: JUSTICE SECTOR AND THE RULE OF LAW v List of acronyms AfriMAP Africa Governance Monitoring and Advocacy Project ACDP African Christian Democratic Party ANC African National Congress APRM African Peer Review Mechanism AWB Afrikaner Weerstandsbeweging AU African Union AZAPO Azanian People’s Organisation CALS Centre for Applied Legal Studies CSSDCA Conference on Security, Stability, Development and Co-operation in Africa CPF Community Police Forum CSPRI Civil Society Prison Reform Initiative CV Curriculum Vitae DA Democratic Alliance DoJCD Department of Justice and Constitutional Development ENE Estimates of National Expenditure FBI Federal Bureau of Investigation FXI Freedom of Expression Institute of South Africa HURISA Human Rights Institute of South Africa ICD Independent Complaints Directorate ICESR International Covenant on Economic and Social Rights IDASA Institute for Democracy in South Africa IFP Inkatha Freedom Party IPV Independent Prison Visitor JSC Judicial Services Commission LLB Bachelor of Law degree LSSA Law Society of South Africa MEC Member of the Executive Council (provincial executive) MTEF Medium-Term Expenditure Framework MTSF Medium-Term Strategic Framework NDPP National Director of Public Prosecutions vi SOUTH AFRICA: JUSTICE SECTOR AND THE RULE OF LAW NEC National Executive Council (of the ANC) NEPAD New Partnership for Africa’s Development NGO Non-governmental Organisation NICRO National Institute for Crime Prevention and the Reintegration of Offenders NNP New National Party NPA National Prosecuting Authority OAU Organisation of African Unity OHCHR Office of the UN High Commissioner for Human Rights OSF-SA Open Society Foundation for South Africa PAGAD People Against Gangsterism and Drugs PAIA Promotion of Access to Information Act PAJA Promotion of Administrative Justice Act PEACA Peninsula Anti-Crime Agency PLT Practical Legal Training course Poslec Seta Police, Private Security, Legal, Correctional Services and Justice Sector Education and Training Authority SABC South African Broadcasting Corporation SAHA South African History Archive SAHRC South African Human Rights Commission SANDF South African National Defence Force SANGOCO South African Non-Governmental Organisation Coalition SARS South African Revenue Service SAPS South African Police Service SCOPA Standing Committee on Public Accounts SIU Special Investigating Units TAC Treatment Action Campaign TRC Truth and Reconciliation Commission UN United Nations USA United States of America WLC Women’s Legal Centre SOUTH AFRICA: JUSTICE SECTOR AND THE RULE OF LAW vii Acknowledgements The preparation and finalisation of this report would not have been possible without the valuable contributions of a number of individuals and research organisations. Key amongst these contributors is Anthea van der Burg (OSF-SA), who played many roles from researcher to editor to manager. Without her pivotal role, this report may yet be a work in progress. Karla Saller undertook the task of legal editor and not only did a superb job, she enjoyed herself too. Sean Tait and Louise Ehlers, senior members of staff at OSF-SA, contributed excellent research on the Criminal Justice System in South Africa. A panel of researchers, comprised of the Human Rights Institute for South Africa (HURISA), the Institute for Security Studies, and Chaskalson and De Jong Associates, prepared sections of the report. Bronwen Manby, executive director of AfriMAP, edited drafts of the report and made valu- able contributions. Smita Choraria, programme assistant to AfriMAP, provided painstaking work in checking footnotes and summarising chapter contents, as well as contributing supplementary research and leading the report design. Zohra Dawood, executive director of OSF-SA, provided intellectual guidance and valuable advice throughout the process. Sincere appreciation is extended to all involved. viii SOUTH AFRICA: JUSTICE SECTOR AND THE RULE OF LAW Preface The Africa Governance Monitoring and Advocacy Project (AfriMAP) of the Open Society Foundation was established in 2004 to monitor observance of standards relating to human rights, the rule of law and accountable government, by both African states and their development partners. African states have undertaken increasing commitments to good governance since the African Union replaced the Organisation of African Unity in 2002. Among these commit- ments are the provisions of the Constitutive Act of the African Union, in which member states agree to promote human rights, democratic principles and institutions, popular participa- tion and good governance. Other newly adopted documents include the New Partnership for Africa’s Development (NEPAD) and the African Peer Review Mechanism (APRM), as well as the Convention on Preventing and Combating Corruption. AfriMAP’s research is intended to facilitate and promote respect for these commitments by highlighting key issues, and providing a platform for national civil society organisations to engage in their own monitoring efforts. AfriMAP’s methodology is based on standardised reporting frameworks that link respect for good governance and human rights, to development that benefits poor people. Through a process of expert consultation, AfriMAP has developed reporting frameworks in three thematic areas: the justice sector and the rule of law; political participation; and the delivery of public ser- vices. The questionnaires that result, among them the questionnaire on the justice sector and the rule of law that guided this report, are available at the AfriMAP website: www.afrimap.org. The reports are elaborated by experts from the countries concerned, in close collaboration with the Open Society Institute’s network of foundations in Africa and AfriMAP’s own staff. Drafts of this report were reviewed by a range of experts, with their comments and criticisms reflected in the final content. The aim is that the reports should form a resource both for activists in the country concerned, and for others working across Africa, to improve respect for human rights and democratic values. SOUTH AFRICA: JUSTICE SECTOR AND THE RULE OF LAW ix Foreword This report, South Africa: Justice Sector and the Rule of Law, comes at an important time for South Africa and the African continent. It is one of a set of reports initiated by AfriMAP that intend to go beyond describing the institutional arrangements in a constitutional democracy and reflect on the health and quality of democracy and
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