GUILTY OR NOT GUILTY: BEHIND BARS ANYWAY TWENTY-THIRD ISSUE AUGUST 2012 QUARTERLY roundtable THE HELEN SUZMAN FOUNDATION SERIES helen.suzman.foundation promoting liberal constitutional democracy Vision Promoting liberal constitutional democracy in South Africa. Mission To create a platform for public debate and dialogue – through publications, roundtable discussions, conferences, and by developing a research profile through an internship programme – with the aim of enhancing public service delivery in all its constituent parts. The work of the Helen Suzman Foundation will be driven by the principles that informed Helen Suzman’s public life. These principles are: • Reasoned discourse; • Fairness and equity; • The protection of human rights. The Foundation is not aligned to any political party and will actively work with a range of people and organisations to have a constructive influence on the country’s emerging democracy. “I stand for simple justice, equal opportunity and human rights; the indispensable elements in a democratic society – and well worth fighting for.” — Helen Suzman Hosted in association with the Open Society Foundation For South Africa roundtable Contact Details Tel +27 11 482 2872 Fax +27 11 482 7897 Email [email protected] Website www.hsf.org.za Postal address Postnet Suite 130, Private Bag X2600, Houghton, 2041, South Africa Physical address 2 Sherborne Road, Parktown, 2193, Johannesburg helen.suzman.foundation promoting liberal constitutional democracy Contents 2 PROFILES 4 EXECUTIVE SUMMARY 6 FRANCIS ANTONIE Director of the Helen Suzman Foundation, Chair 8 NOOSHINI ERfani-GHADIMI Project Coordinator, Wits Justice Project (WJP) 13 STEPHEN TUSON Attorney, Wits Law Clinic 17 KATHY SATCHWELL Judge, South Gauteng High Court 22 VINCENT SMITH Chair of the Portfolio Committee on Correctional Services; and Co-Chair of the Interim Joint Committee on the Scrutiny of Delegated Legislation 26 DISCUSSION, QUESTIONS & COMMENTS 34 MEDIA COVERAGE Business Day Live This Quarterly Roundtable Series monograph is published by The Helen Suzman Foundation. ISSN 1996-1770 Board of Trustees: Hylton Appelbaum, Doug Band, Colin Eglin, Nicole Jaff, Daniel Jowell, Temba Nolutshungu, Krishna Patel, Sipho Seepe, Mary Slack, Richard Steyn, David Unterhalter, Gary Ralfe, Jane Evans and Modise Phekonyane Director: Francis Antonie QRS Coordinators: Michael Edmeston, Kate Francis, Timothy Kenny, Lewis Mash and Anele Mtwesi Design & Layout: Alison Parkinson Media Photography: Caroline Suzman Funders: The Helen Suzman Foundation is grateful to the Open Society Foundation For South Africa for their support. 1 Profiles Nooshini Erfani-Ghadimi Stephen Tuson Nooshin Erfani-Ghadimi Prof. Stephen Tuson is a joined the Wits Justice Project practising attorney, working at (WJP) as Project Coordinator the Wits Law Clinic providing in January 2012. Through free legal services to the the four arms of the project poor. He teaches Criminal – journalism, advocacy, law Law and Criminal Procedure and education – the WJP and is a specialist criminal strives to bring substantial defence attorney. He also changes to the law and runs the Wits Family Law its practice and the wider clinic and has taught at Wits criminal justice system as a University for 22 years. He whole. Before that, Nooshin offers seminars and training was the Humanitarian in Trial Advocacy at both Diplomacy Senior Officer of Wits University and to Law the International Federation Institutes in Uganda and of Red Cross Red Crescent Lesotho. Societies – the world’s largest humanitarian network. Her specific portfolio included government relations and diplomacy; public affairs and advocacy; humanitarian affairs; communications; and protocol and external relations. Nooshin has also worked in the corporate and consultancy sectors, living and working on three continents, and brings these experiences to her work in advocating for the most vulnerable. 2 Kathy Satchwell Vincent Smith Francis Antonie Judge Kathy Satchwell Mr Vincent Smith was Francis Antonie is the was educated at Rhodes elected as the first Deputy Director of the Helen Suzman University. She was a Chairperson of the ANC Foundation. He is a graduate prominent human rights Johannesburg Regional of Wits, Leicester and attorney in the 1990s. She Executive at its launch Exeter Universities. He was gave evidence before the after the unbanning of the awarded the Helen Suzman Truth and Reconciliation organisation and served until Chevening Fellowship by Commission on the role of the 2008. In 1999 he was elected the UK Foreign Office in legal system in contributing to Parliament and served as 1994. From 1996 to 2006 to the violations of human member and chairperson of he was senior economist at rights in South Africa under the Standing Committee on Standard Bank; thereafter he apartheid. In 1999 she was Public Accounts (SCOPA) was Director of the Graduate appointed by President until 2009. Mr Smith was School of Public Development Nelson Mandela to be elected to the Executive of the and Management at Wits Chairperson of the Road SADC committee on Public University. He was the Accident Fund Commission. Accounts in 2005 and served founding managing director of In September 2001 in the first as General Secretary Strauss & Co. case Satchwell v President of from 2005 until 2007 and the Republic of South Africa, then as Chair from 2007 until Satchwell, won the right for 2009. Vincent currently serves her partner to enjoy the same as Chair of the Portfolio benefits as those previously Committee on Correctional reserved for spouses.of Services; and Co-Chair of married heterosexual judges. the Interim Joint Committee This right was confirmed by on the Scrutiny of Delegated the Constitutional Court in Legislation. 2002. This decision is seen as one of five key decisions that set the status of same-sex civil unions in South Africa. Judge Satchwell currently presides in the South Gauteng High Court. 3 Executive he Helen Suzman Foundation, in • 158 853 inmates in the country. association with the Open Society For • Of these, 46 481 were remand detainees – South Africa, hosted a QRS dealing with people who have been arrested and charged Tprisoners in remand and human rights. but whose trials have not been concluded. The aim of the QRS was to explore the issues They have not been found guilty due to currently faced by people who are placed in the presumption of innocence afforded by remand detention pending the finalisation Section 35(3)(h) of the Constitution. of their court case. These issues include • Approximately 2 in 5 of these inmates will overcrowding, court delays, excessive time eventually be acquitted. This means that a spent in remand, and an inability to qualify for staggering number of innocent people are bail amongst others. being deprived of their freedom. In order to understand and measure the As a consequence ordinary people, potentially success of any democracy one must examine innocent of any crime, can languish in appalling the functioning of its criminal justice system: conditions in prisons across South Africa for how crime is investigated, prosecuted and years before their trial is concluded. punished within the framework of the country’s constitution and the benchmark of international The serious failures of the criminal justice system human rights law. in South Africa – including unreliable forensic processes and structures, and inefficient court South Africa suffers under the burden of an processes – increase the likelihood of denying immense level of crime, the causes of which justice to those wrongly incarcerated and and the remedies for the problem have long deprived of their freedom. been debated. At this point the discussion moves on to the prison system and its inmates. This is not a unique problem to South Africa and In South Africa the prison system has often these same issues can be found in a number of been criticised for its inefficiency and systemic regional and international jurisdictions. In the failures, which have led, in some instances, to International Centre for Prison Studies’ World violations of basic human rights. Prison Brief as at 31 December 2011 Malawi’s prisoners in remand stood at 12.3 percent of According to the Department of Correctional its total prison population (one of the lowest in Services, at the end of March 2012 there were: Africa). Tanzania, on the other hand, had over 4 Summary 50 percent of its total prison population sitting officers have their performance evaluated. in remand; Nigeria had a remand population of Instead of measuring the number of successful over 70 percent as of 31 March 2012. The United prosecutions due to a successful investigation, States as at 31 December 2010 had a remand police are measured on the number of arrests population of 21.5 percent and the Netherlands they make. This means that the other measures was up at 40.6 percent in September 2011. at their disposal, such as the issuing of a What is not clear from the data, however, is the summons, are often overlooked. length of time these prisoners may spend in remand detention. This focus on arrest has a direct influence on the overburdening of the courts system and The Roundtable asked its panelists to consider thus the Correctional Services facilities where the following questions: these people end up in remand detention if • Is there a breakdown in South Africa’s they fail to secure bail, which is often the case criminal justice system? in South Africa. • Why has this happened? • What is being done to overcome these It was highlighted that each point on the problems? criminal justice continuum faced its own • What more can be done to overcome these particular set of problems which each challenges? needed to have resolved through the better management of current resources and better The panelists were each able to offer a implementation of existing legislation. All of number of salient points that explained these pressure points had an adverse effect on why South Africa was faced with the type the ability of the Correctional Services facilities of problems experienced in its Correctional to adequately deal with those prisoners who Service centers.