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SA CRIME QUARTERLY NO. 69 • 2020
Comment
and analysis
The crisis of criminal justice
in South Africa
South African
In 2017, I delivered a lecture at the University of the Western Cape (UWC) aimed at confronting a
controversial and often overlooked crisis in the criminal justice system – the minimum sentencing
regime.2 While writing that lecture, which forms the basis of this article, I originally entitled it ‘Crisis?
What Crisis? Why Criminal Justice is Failing All in South Africa’. Shortly after that, the tragedy of
Uyinene Mrwetyana’s death hit South Africa. The anguish of a vulnerable woman at the very
University where the lecture was to be delivered having her life brutally ended, in unspeakably
nightmarish moments, by the exertion over her of ghastly destructive male dominance, shocked us
all to the core. It elicited a national outpouring of grief and rage – and, rightfully, a new demand for
answers from our criminal justice system. A whimsical title no longer seemed appropriate. Things are
too deadly – deathly – serious.
CR IM E QUA RT ER LY
Edwin Cameron1
cameron.edwin@gmail.com
http://dx.doi.org/10.17159/2413-3108/2020/v0n68a9253
No. 69 | 2020
I do not suggest that criminals, especially those
that are violent against women, do not deserve
harsh punishments. My central thesis is that
minimum sentences are no response at all to
curbing crime in South Africa and to making our
people – vulnerable young people like Uyinene
– safe. The minimum sentencing regime is
a misdirected, hugely costly and above all
ineffective way of punishing criminals and
dealing with crime. It has been an extravagant
mistake of science, understanding, and policy
and social response.
In this article, I summarise some of the
arguments from that lecture and consider
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criminals have obviously declared war against
the South African public… we are ready more
than ever before, not just to send the message
to the criminals out there about our intention,
but more importantly to make them feel that
the tyd vir speletjies is nou verby’ [the time for
games is now over].17
The radical shift
The harsh new policies adopted during the late
1990s included:
• the Criminal Law Amendment Act 105
of 1997, which introduced minimum
sentencing provisions;
• the Criminal Procedure Amendment Acts of
1995 and 1997, which made getting bail a
lot tougher;18
• the Correctional Services Act 111 of 1998,
which complicates release processes and
stiffens bail and parole processes; and
• the Prevention of Organised Crime Act
121 of 1998 which in effect casted a wider
criminal net and ordered the forfeiture of
criminal gains.19
In addition, the United States model of super-
maximum security prisons was imported into
South Africa in the form of C-Max prisons.20
The most puzzling and perhaps the most
harmful of these were the minimum sentencing
prescripts. As Lukas Muntingh notes, ‘[t]hese
changes were purposefully directed at imposing
harsher punishments by limiting access to bail,
increasing sentence jurisdiction, lengthening
prison terms, limiting courts’ discretion at
sentencing and increasing non-parole periods.
However, the impact of these measures,
individually or combined, on the already
overcrowded prisons was of little concern to the
legislature and the executive’.21
The findings of the sadly now-forgotten Jali
Commission underscored all this. It found that
‘[t]he relatively new bail laws, which limit the
circumstances under which an accused person
can be released on bail, certainly contribute
to the high number of accused persons
languishing in the awaiting trial section of our
Prisons. Furthermore, the renewed minimum
sentence legislation also impacts negatively in
that many prisoners who have been convicted
in the regional courts on serious charges have
to wait extraordinarily long periods for High
Court dates before they are sentenced’.22
The minimum sentencing regime
Minimum sentencing legislation in South Africa
dates back to the 1970s. In 1971 the apartheid
ideologue Dr Connie Mulder introduced
minimum sentencing for cannabis and other
drug-related offences.23 Those sentences had
an appalling impact and conspicuously failed
to curb the use and distribution of cannabis.
Even the apartheid judiciary condemned them.24
They did so even against minimum sentences in
political (that is, anti-apartheid) cases.25
My first experience of the impact of minimum
sentences was when I visited Vereeniging
prison, in July 1976, as a vacation-break
registrar to Judge Douglas Davidson, a judge
of the then-Transvaal Provincial Division of the
Supreme Court, who was on circuit court. We
found a prison crammed full of women and
men, most of whose only sin was to possess
or pass on small amounts of cannabis –
something the indigenous populations of this
country had been doing for centuries.
Just a year before the enactment of the
1997 statute, the new Minister of Justice,
Dullah Omar had appointed a committee of
the South African Law Reform Commission
(SALRC) to consider the sentencing policy. The
Commission’s report set out six alternatives to
minimum sentencing.26 These included more
sensible, just measures such as presumptive
sentencing guidelines, voluntary sentencing
why we are still stuck with minimum
sentences when they are demonstrably
useless and counterproductive. I find the
reasons in our broken history, in incoherent
decision-making in our present political
leadership, institutional incompetence, and
the fact that minimum sentences themselves,
through their false promise, divert us from
finding more efficient solutions.
How we got minimum sentences
During apartheid, prisons were referred
to as ‘universities of crimes’ or ‘criminal
headquarters’.3 The prison system, based
on the Prisons Act 8 of 1959, was strictly
segregated racially.4 The death penalty was
regularly enforced – at its height, more than
three times a week, in Pretoria. Before apartheid
officially ended, South Africa reconsidered its
approach to crime and punishment, viewing
prisoners as more entitled to human rights.5
A transition from a punitive to a restorative
justice approach was heralded by the change
in mandate, legislation, and policies towards
prisoners. Prison services were relocated from
the Department of Justice and renamed the
Department of Correctional Services.6
The rights enshrined in the interim Constitution
and then in the Constitution’s Bill of Rights
embodied this transformation. It was vividly
encapsulated the newly established South
African Human Rights Commission’s Report,
produced in 1998, following an inquiry into
prisons in South Africa.7 In the Foreword, the
Commission’s chairperson, Professor Barney
Pityana, stated optimistically that the duty of the
Commission is ‘to develop a different calibre of
prison system that would be consistent with our
new Constitution and with international norms
and standards’.8
In the same spirit, the Constitution provides
that prisoners, including both remand detainees
and sentenced offenders, have the right to
‘conditions of detention that are consistent with
human dignity’. 9 This provision requires that, at
a minimum, prisoners should have access to —
exercise, adequate accommodation, nutrition,
reading material and medical treatment. The
Constitution also seeks to protect inmates
from cruel, inhuman or degrading treatment
or punishment. Many of the new leaders of
democratic South Africa had experienced
prison or the real threat of it. The new President,
Nelson Rolihlahla Mandela, had served 27 years
in apartheid’s prisons.
The upward-looking approach to penal
conditions was premised on the supposition
that high crime rates were caused by
apartheid.10 Once apartheid was abolished the
crime rate would gradually decline and the little
crime remaining would be dealt with by a fair
criminal justice system.
Reality proved to seem the opposite. During
the first decade of democracy, crime increased
– as did fear of crime. According to the South
African Police Services (SAPS), during 1994-
2004, crime in fact increased by an alarming
30%.11 Our country experienced what was
described as a post-apartheid ‘crime wave’.12
The National Victims of Crime Survey of 2003
concluded that the fear of crime amongst
South Africans more than doubled – from
25% in 1998 to 58% in 2003.13 The majority
of South Africans, black and white, rich and
poor, urban and rural, felt unsafe in the newly
democratic state.
This inevitably generated public calls for
criminals to receive longer and tougher
sentences.14 This triggered ‘tough on crime’
policies, which were harsh and punitive.15 A
statement by the Commissioner of Correctional
Services, Khulekani Sithole, in 1997 illustrates
a relapse to a punitive approach: ‘[t]hey are
animals. They must never see the sunlight
again’.16 The Minister of Safety and Security
in 1999, Steve Tshwete, claimed that ‘the
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85 252 sentenced offenders).42 This means that
over just less than a quarter-century, our prison
population increased by two-fifths (39% or 1.4%
per annum). Even though this is not as high as
the peak prison population numbers in the early
2000s, the Judicial Inspectorate of Correctional
Services43 has described the current numbers
as ‘unacceptably high’.44
Together with the abolition of the death
penalty by decision of the Constitutional
Court in 1995,45 which led to the imposition
of life sentences on most of those previously
sentenced to death,46 and restrictions on parole
policies, minimum sentencing has resulted in
gross overcrowding.47 This not only negatively
affects the well-being of prisoners, but also
impedes good governance and administration
of a prison.48
The human impact
Prisoners in South Africa experience a number
of day-to-day perils. Sexual violence seems to
be pervasive. Violence in general is rampant
in South African prisons, perpetrated by
prisoners (whether within or outside gang
structures).49 Prisons are known as sites for
the spread of communicable and infectious
diseases such as sexually transmitted diseases,
TB and HIV. Mental health is also a serious
problem. Prisoners with mental issues are not
detected when entering the system and remain
incarcerated in communal cells. Conditions
in the prison setting are traumatic and trigger
mental issues. Mental health problems are
also prevalent among prisoners re-entering
society who face the stigma and marginalisation
within their communities. And, perhaps most
frighteningly, gangs and drugs flourish in
overcrowded prisons.
In 2015, I visited Pollsmoor Correctional
Centre (Remand Centre and Women’s
Centre). My later report indicated that ‘the
extent of overcrowding, unsanitary conditions,
guidelines, and legislative guidelines.27
Presciently, it also cautioned that, although
too early to gauge long-term effects, the new
sentences would likely have a ‘profound’ effect
on the prison population.28 But in reaction to
the crime panic, the country’s lawmakers had
already shut the door. Parliament had selected
the harshest option – without the benefit of
mature law reform deliberative process.
The Criminal Law Amendment Act strictly
curtailed the power of judges to determine the
length of prison terms for offences or offenders.
Instead, it provided minimum sentences for
certain serious offenses. These included a
mandatory life sentence for:
• premeditated murder;
• murder of a law enforcement official, or a
potential state witness;
• murder connected to a rape or robbery with
aggravated circumstances;
• rape committed more than once by the
accused or others;
• gang rape; and
• rape of a minor under 16.29
The law mandates a 15-year sentence for a
first-time offender convicted of murder (under
circumstances that would not otherwise merit
a life sentence), robbery, certain drug-related
offenses, weapons-related offenses, or ‘[a]ny
offence relating to exchange control, extortion,
fraud, forgery, uttering, theft’. A repeat offender
must be sentenced to not fewer than 20 years,
and a third- or further-time offender a sentence
of not fewer than 25 years. In addition, the
minimum sentences cannot be suspended.30
Time spent awaiting trial cannot be counted as
part of the sentence to be served.31
The new minimum sentencing regime was
intended to be a temporary solution to a
temporary problem.32 Minister Omar told
parliament that the new sentences were ‘to
tide us over our transition period’33 and to
‘restore confidence in the ability of the criminal
justice system to protect the public against
crime’.34 They were initially stated to apply for
a limited period of two years only, which could
be extended from time to time.35 However,
following the amendments made in 2007 it is
now in force until expressly scrapped.36
Consistency in sentencing is supposedly
one of the primary justifications for minimum
sentences.37 Judges may depart from minimum
sentences only if ‘satisfied that substantial and
compelling circumstances exist which justify
the imposition of a lesser sentence’.38 However,
this criterion is unclear and inconsistently
applied.39 Factors used, erroneously, to justify
lesser sentences have included: the previous
sexual history of the complainant, an accused’s
cultural beliefs about sexual assault, absence
of excessive force in perpetrating the rape,
lack or apparent lack of physical harm to
the complainant, lack or apparent lack of
psychological harm to the complainant, any
relationship between the accused and the
complainant before the offence (including a
consensual sexual relationship) and a lack of
education, sophistication or disadvantaged
background on the part of the accused.40 In
determining the appropriate, proportionate and
justified punishment, the minimum sentencing
regime, even with its qualification of ‘substantial
and compelling circumstances’ is sometimes
utterly misdirected.
The consequences
The increases in carceral lengths has meant
a significant increase in the prison population.
At the time of the lecture (because of COVID-
related interventions, the number has thankfully
declined), there were about 164 129 prisoners
in South Africa – 46 260 remand detainees
and 117 869 sentenced offenders.41 By
contrast, in 1995 the total prison population
was 112 572 (27 320 remand detainees and
sickness, emaciated physical appearance of
the detainees, and overall deplorable living
conditions was profoundly disturbing’.50 My
report exposed that overcrowding was evident
everywhere, but especially in the Remand
Detention Facility where occupation was at a
startling 300%, with an average of 65 prisoners
per cell (sharing one toilet and one shower).
In response to the report, Sonke Gender
Justice and Lawyers for Human Rights brought
proceedings in the Western Cape High Court,
seeking a structural interdict to address these
conditions. As a result, the Department of
Correctional Services transferred a significant
number of prisoners from Pollsmoor to other
centres. But, grievously, this seems merely
to have transferred the problem elsewhere.
The current Judicial Inspector of Correctional
Services, retired Justice Johann van der
Westhuizen, noted that ‘although [the court
order] alleviated the overcrowding crisis
at Pollsmoor, it caused other unintended
challenges, for example, exacerbating
overcrowding elsewhere, especially at smaller
centres’.51 He cautions that overcrowding in the
Western Cape is still at 90% or more.52
The 164 129 individuals incarcerated are not
necessarily constantly behind bars and out of
the public domain. The South African prison
population is particularly fluid with one of the
highest incarceration rates in the world coupled
with one of the highest recidivism rates in
the world (estimates range from 60–90%).53
These indicators show that there is a constant
interchange between people inside and outside
of prisons. Our prison walls are permeable.
Former Inspecting Judge Hannes Fagan54
warned that the harsh conditions created in
the prisons because of overcrowding are ‘not
curbing crime’ – on the contrary, they are
‘creating it’.55
Minimum sentences in fact have a pernicious
effect – on our correctional system, on
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reform. Let me be blunt. Our new democratic
elite, including me as a retired Judge and almost
everyone who attended my lecture or is likely
to read this article, cares too little for reasons of
race and class. Our lack of caring means that
we fail to see the urgent need for constructive
thought and action to implement solutions.
The fourth explanation for the lack of response
is that nine years of criminal syndicalism and
looting of state assets has sapped moral
energy and institutional capacity. The crime
surge in democratic South Africa was directly
linked to the collapse of institutional capacity
in the police – particularly, the crime detection
and follow up services – and the collapse
of competence in the National Prosecuting
Authority (NPA). This breakdown became
sharply aggravated during the ‘Zuma years’.
Former President Zuma seemed determined to
appoint as head of the NPA a loyalist who could
be relied upon to protect his own interests. This
lead to a chaotic series of leadership bungles
attributable to malign incompetence of various
kinds.66 The result has been a catastrophic
loss of focus and capacity. Over the period
preceding the Ramaphosa presidency, our
government has been (and unavoidably still is)
plagued by criminally syndicated corruption and
institutional disintegration.
Possible solutions
There are solutions. They are not easy. None
of them offers a quick fix. The major response
to the crime wave in our country should be to
recognise that the sole inhibiting institutional
response to criminal conduct is the certainty
of detection, the certainty follow up, the
certainty of arraignment, the certainty of
prosecution – and the certainty of punishment.
In this certainty, the length of sentence plays no
role. In other words, whether a potential rapist
faces a sentence of 2, 5, 10 years or life, it is
not the length of sentence but the certainty
of sentencing that will make them stop. This
means that we must look away from
minimum sentences.
The blunt point is this. We do no good at all
by finding and prosecuting a haphazardly
small segment of rapists and murderers and
sentencing them to life imprisonment, jamming
our prisons. What possible point is there to this
in a country with 21 022 murders a year and
with reportedly over 41 583 rapes a year?67
Minimum sentences merely divert us from
understanding what we should be doing.
Jameelah Omar underscores that law alone can
only go so far: ‘bringing back the death penalty,
full life sentences for those convicted of sexual
offences … are not solutions. Our criminal
justice system is flawed, in some ways fatally
defective, and needs to be overhauled’.68 What
we should be doing is the long slow process
of improving police capacity. This doesn’t
necessarily mean increasing numbers, but
police competence, responsiveness, training
and skills. It should also include restoring
crime intelligence, which could lead to the
responsiveness and turnover of the NPA.
In the meantime there are some things we
can and have to do. First, abolish minimum
sentences. Scrap minimum sentences
immediately for most low-level, nonviolent,
or non-serious crimes. This is particularly
important for drug-related offenses –
mandatory minimums should be eliminated.
The Constitutional Court’s judgment in Minister
of Justice and Constitutional Development v
Prince69 is a step in the right direction. The
Constitutional Court ruled, unanimously, that
criminalising the use or possession in private,
or cultivation in a private place, of cannabis
by an adult for his or her own personal
consumption in private, violates the privacy
guarantee of Bill of Rights. A significant
consideration the court took into account was
the impact of the criminal law.70
offenders, and, most of all, on us – our society.
The reason is that minimum sentences offer us
a false promise – the belief that we are actually
doing something about crime. But in fact we
are not. And this false promise lets those who
are responsible for effectively dealing with
crime – our society’s leaders, and the criminal
justice system for whose functioning they are
responsible – off the hook.
To make my point during the UWC lecture,
I considered four possible justifications for
minimum sentences: (i) prison deters crime,
(ii) imprisonment incapacitates criminals and
prevents more crime while they are in prison,
(iii) prison can rehabilitate criminals, and
(iv) finally, prison is retributive and so vindicates
justice for victims and society. None of these
justifications supports minimum sentencing
as applied in South Africa today. The blunt
fact is that minimum sentences simply do not
work. What is more, they have seriously and
dangerously clogged up our prison system.
Why no response?
After the UWC lecture, I anticipated public
outrage. After all, a judge had decried minimum
sentences. Surely pro-imprisonment activists,
rightly concerned about women and other
victims of crime, would speak out to rebut
my arguments against harsh sentencing? But
no. Not a peep.56 In the United States – from
where minimum sentences originate, and which
provided specifically the model for our statutory
format – an engrossing, bipartisan debate
has been taking place about incarceration,
about its racial impact and about its social
utility and costs.57
In my vanity, or naiveté, I had hoped to
help trigger a similar debate here. It has not
happened. Apart from courageous non-
governmental organisations, including Sonke
Gender Justice, Lawyers for Human Rights,
Just Detention International, Wits Justice
Project and others combined in the Detention
Justice Forum,58 who continue the fight for
rationality in penal and criminal policy, there has
been silence.
There are four possible explanations. First,
South Africans are deeply worried about crime,
and justifiably so.59 With crime rampant, locking
up criminals and throwing away the key are
favourably considered because of a sense of
bewildermen, bafflement and fear about crime.
Some people even propose reintroducing the
death penalty.60 Our dismay, fear and anger
at the horrors criminals inflict on us paralyse
us. They prevent us seeking better and more
effective solutions.
Second, the slowdown of our economy
has been a preoccupation and distraction.
Our economic woes, combined with the
paralysis from crime divert us from proper
criminological and penological solutions. The
economic situation has led to joblessness;
our unemployment rate for the first quarter of
2019 was 27.6% (with a particular increase in
youth unemployment at a startling 55.2%).61 As
a result, many turn to crime.62 With resources
scarce and times austere, it is difficult to
argue for more resources for prisoners or
more resources for effective crime prevention.
Budgetary needs compete with needs in health
and education and housing.
Third, crime is politicised in South Africa. With
the scars of our apartheid past, our prison
population was and still does comprise mainly
black males.63 The issue today is not just race
but also class. The majority of South African
prisoners, sentenced and remand detainees,
are from poor disadvantaged backgrounds.64
Moreover, the burden of serious crime is
disproportionately borne by poor black South
Africans.65 Poverty often means a matching
voicelessness. The families of rapists and
murderers sentenced to life imprisonment would
form an improbable lobby group for penological
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government R330 per day (approximately
R10 000 per month) to keep a single
prisoner, incarcerated, whether on remand
or sentenced.83 This means that cash bail in
trivial amounts that an accused cannot afford
is not only unjust – it is wasteful, unproductive
and inefficient.
Apart from these statutory mountains, which
many could not surmount, one of the biggest
barriers is affordability. Even when the court is
satisfied that the interests of justice permit bail,
the monetary amount is set without taking the
individual circumstances of the accused into
account.84 The statutory provisions foresee this,
and provide expressly for it.85 An authoritative
survey indicated 7 486 detainees were being
held in detention simply because they could not
afford bail.86 Of these, 76% could not afford bail
of R1 000 or less. This renders them ‘prisoners
of poverty’ – individuals not meant to be there,
whose mere inability to pay the required bail
amount keeps them locked in prison, where
they in turn contribute to overcrowding.87 My
recent inspection to Johannesburg Correctional
Centre revealed that there were detainees who
could not afford bail of sums as small as R200
to R300.88 This is by no means a new problem.
Years ago, it was exposed by Judge Fagan,
when Inspecting Judge of Prisons, that at least
13 000 prisoners who could not afford bail as
set were being held in prison solely because of
poverty.89 The denial of bail should be based
on soundly-assessed danger to society, not
on affordability. Bail processes are pivotal
to reducing overcrowding – especially since
nearly one-third (30%) of the prison population
comprises remand detainees.
In reforming our bail system, we should
consider:
Adult Diversion Schemes: In New Zealand,
the Police Adult Diversion Scheme involves
a police diversion officer assessing the
appropriateness of diversion and facilitating the
signing of an agreement by the offender, which
could include an apology, compensation and
commitment to a restorative justice process.90
Laws banning pre-trial detention under
defined circumstances: In an effort to reduce
unjust detentions, some jurisdictions prohibit
remand detention for certain offences and/or
potential sentences. In Armenia, an arrest (and
its substitute monetary bail) can be effected only
for crimes punishable by more than one year’s
imprisonment.91 In India, where an accused
person is unable to furnish any surety for bail
within a week of arrest, the accused is deemed
indigent and is released on personal bond
without sureties.92
Pre-trial services: Different interventions
aim to ensure that an accused appears at
trial and is not rearrested pre-trial. These
include: court dated notifications, pre-
trial supervision, and risk assessments of
independently verified information to assist a
judicial officer in determining more equitable
bail.93 In 1997, an American organisation94
established a pre-trial services project to
reduce overcrowding of remand detention
facilities in South Africa. Although the project
was not adopted nationally, the Port Elizabeth
Magistrates Court incorporated it as part of
an integrated Justice System Court Centre.
A review in 2001 showed a reduction in time
taken to prepare a ready trial docket, improved
docket quality and increased conviction rates,
effective bail decisions and a reduction in
remand detainees.95 Although pre-trial services
require more resources in an already scarce
environment, savings will result from fewer
detainees. This is a strategy worth revisiting.
Inquiry into the ability to pay bail: Although
South African courts are required to take
account of individual circumstances, particularly
the financial standing of the accused, this is
either not done at all, or not done on a uniform
basis. There should be clear and accepted
The ‘war on drugs’ is a hugely expensive and
almost entirely pointless waste of lives and
resources.71 More suitable punishments for non-
violent drug-related offences include: shorter
sentences, probation, community service,
electronic monitoring, or medical treatment. I
do not mean that we should take a soft line on
white-collar criminals. The fact is that minimum
sentences unfairly exempt those at the top
end of the criminal food chain, and unfairly
impact on the poor and the dispossessed. For
instance, under the current system of minimum
sentencing, the same sentence applies for drug
trafficking as for murder. Unnecessarily harsh
sentencing should be reviewed and replaced. It
is important to ensure proportionality between
the various types of crime.
Second, parliament should consider
implementing a Sentencing Council to reform
or replace mandatory minimum sentences.72
This body would be tasked with developing
and reviewing sentencing guidelines. SALRC
recommended a break from the common
law divergent sentencing and advocated for
sentencing principles to be clearly articulated
in legislation. This would be supplemented
by sentencing guidelines developed by an
independent Sentencing Council for a particular
category or sub-category of an offence. Judicial
officers are encouraged to play a key role on
the council to ensure its independence and to
help with institutional knowledge and practical
experience. The guidelines established by the
council ought to be flexible to ensure departure
in appropriate circumstances. Comparable
jurisdictions use a sentencing council.73 Our
parliament has yet to take this up.
What is needed is a cooperative approach to
reform sentencing. In order for any sentencing
reform to make an impact, it requires all three
branches of government to cooperate and
work together to form an effective criminal
justice system.
Bail reform
We need to make bail better, more efficient
and more just. Bail should be available on
a more flexible basis and not tie accused
individuals up in rigid knots. The apartheid
system notoriously used detention as a tool of
coercion against those threatening the state,
with detention without trial for 90 and later 180
days expressly permitted by statute.74 As a
result, the Constitution provides for section 1275
and section 35(1)(f)76 of the Bill of Rights. The
effect is that people in South Africa have no
automatic right to bail. The rhetoric of the post-
apartheid ‘crime wave’ triggered severe criticism
against bail which was blamed for the increase
in crime.77 Condemnation continues to this day.
On 3 March 2017, as a response to crime then-
President Zuma requested that ministers in the
security cluster review bail laws to make it more
difficult to be released on bail.78 Later, it was
stated that the Minister had initiated a process
to review bail laws to make them stricter.79
The purpose of bail is to ‘strike a balance
between the interests in society (the accused
should stand trial and there should be no
interference with the administration of justice)
and the liberty of an accused (who, pending the
outcome of the trial, is presumed innocent)’.80
What is more, as the Constitutional Court
pointed out, ‘[b]ail serves not only the liberty
interest of the accused, but the public interest
by reducing the high number of awaiting-trial
prisoners clogging our already over-crowded
correctional system, and by reducing the
number of families deprived of a breadwinner’.81
Furthermore, bail is not meant to be punitive.82
However, stringent bail processes cuts
both ways – it has budgetary implications
for the state (and us, the taxpayers) as well
as affordability problems for the individual
detainee. During my recent inspection of the
Johannesburg Correctional Centre, a senior
official, Madondo, estimated that it costs
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Act was introduced in 2015 to support the use
of restorative justice programs and policies. In
addition, the Canadian Criminal Code promotes
the use of restorative justice mechanisms (victim
offender mediation programs, circles of support
and accountability, peacemaking circles,
healing and sentencing circles).106 In addition,
New Zealand provides for restorative justice
programs through its Sentencing Act, Parole
Act and Victims Rights Act. Restorative justice
processes can operate at different stages in the
criminal justice system.107
Finally, as Gareth Newham, of the Institute for
Security Studies, recommends, we have to
address the key drivers of violence.108 Since
most violent behaviour is learnt at home and
in communities it is imperative to invest in
evidence-based interventions and programs.
This includes positive parenting programs, after-
school care, anti-bullying campaigns at school
as well as other initiatives to tackle the root
causes of gender-based violence.
These recommendations are in line with other
jurisdictions that are gradually shifting away from
the minimum sentencing regime.
Conclusion
The arguments made here are not blind to the
harsh realities and horrors of crime. But the
fact is that our current criminal justice system’s
approaches to crime are so ineffective and
counter-productive that we find ourselves in a
frightening crisis: we are terrified of crime and
yet we are trapped in our futile response. We
find ourselves in a frightening vortex.
If we want to curb crime, it is in our own self-
interest to find solutions that will effectively
reduce crime. The fluidity of the prison
population means we must ensure that
prisoners whether sentenced or awaiting trial
live in conditions consistent with human dignity.
It is a myth that prisons are impermeable.
Prisoners are part of our society and,
definitions of ‘indigent’ and ‘ability to pay,’ a
standard form setting out the accused person’s
income, assets and other financial information
and obligations, based on a certain threshold
where there is a presumption about indigence
or inability to pay monetary bail.96 The SALRC
recommended that fines ought to be more
closely related to the means of the offender.97
Duty solicitors:98 Pre-trial detention can be
reduced by providing legal services. In Nigeria,
in 2004 the Police Duty Solicitors Scheme
(PDSS) was launched. Newly qualified lawyers
delivered free legal services for suspects at
police stations. A survey in 2011 revealed the
project’s success – PDSS released over 10 000
suspects from police stations and prisons,
and nearly 80% of the releases occurred at
prisons.99 With our already overburdened
Legal Aid system, ‘creative ideas for replicating
such a duty solicitor model that take into
account Legal Aid Board’s financial and
human resources constraints will need to be
considered. The South African Legal Practice
Act, for instance, may offer opportunities
relating to community services’.100
For bail to be employed effectively, it must
operate in a properly functioning criminal
justice system. A malfunctioning criminal justice
system counter-indicates the benefits of more
flexible bail processes. I acknowledge fears
that criminals are allowed to strike murderously
again because of laxed bail processes. There
are examples of a lack of proper evidence being
put forward in order to properly oppose bail,
which in turn results in the wrong individuals
being granted bail and bound to re-offend.
Unlawful arrests, frequent police assaults,
unlawful remand decisions and improper
denial of bail is illustrated in the Constitutional
Court decision in De Klerk v Minister of
Police.101 The Court emphasised ‘the duty of
the magistrates to apply their minds to the
question of bail is of the utmost constitutional
significance. Failure to discharge this duty
must result in consequences for the presiding
officer involved’ as well as the arresting officer
whose ‘subjective foresight of the subsequent
detention and harm’ meant that the police were
held liable for post-court detention.
Other measures
Besides sentencing and bail reforms, other
options include releasing elderly offenders at low
risk of committing violence. It is well-established
that men over a certain age group have a low
recidivism rate.102 In addition, men over the age
of 50 are well established to gradually become
less violent. It is a safe bet that violent criminals
who have grown old in prison can be released
with minimal risk once they have served a just
sentence. In most cases, a life sentence is an
unnecessary injustice. This should be done
according to individual assessment. We should
also explore treatment for the mentally ill. Our
prisons are not currently equipped to treat those
with mental health or addiction problems. The
use of super-max or isolation facilities should be
approached with great caution because of their
adverse impact on inmate health and mental
health and because of the potential for abuses.103
We should reconsider the initial
recommendations made by the SALRC. This
includes a restorative justice approach that
advocates for giving victims an increased
role in the sentencing process.104 This is not
namby-pamby thinking. The SALRC soundly
considered the idea. It then proposed a new
sentence of reparation. This includes elements of
both restitution and compensation. The overall
proposal is that the sentencing court must
consider some form of reparations in every case.
This may be independent or combined with
other sentences and in addition imprisonment
or a fine may be suspended on condition of
reparations. Other procedural innovations have
been designed to ensure victims have a more
active role.105 In Canada, the Restorative Justice
conversely, society seeps porously into prison.
What we do to prisoners comes back to haunt
us when they return to society.
We cannot condone the absence from almost
all our prisons of effective training courses and
other rehabilitative programs. During my visit
to Devon Correctional Centre in June 2017 we
discovered that a skills centre (workshop) offered
welding and spray painting, taught by long-term
inmates.109 However, we were informed that the
Centre was short of steel and welding rods and
steel paint, and that budget had run out.
In particular, we need to ensure that bail
processes are effective and fair, and that they
truly balance the interests of the accused
against the interests of society. The point those
complaining about release on bail of dangerous
offenders make is well warranted and correct.
It is a point about systems. Their complaint is
about a misleading, misdirected and inefficient
system of crime intelligence, crime detection
and evidence gathering. And the anger about
bail processes is justified. But what our bail
processes at present are doing is to release the
criminally dangerous while keeping thousands
upon thousands of criminally non-dangerous
incarcerated. We therefore have to introduce
sharper, keener, more efficient and better-
informed bail processes.
Minimum sentencing legislation has failed us.
It has created inconsistent sentencing patterns
that perpetuate a ‘lock up and throw the key
away’ mantra that does not effectively deal with
reducing or deterring crime. While intended to
be a temporary fix, is in no way sustainable. It
is time to find more permanent solutions. Our
national response to AIDS – another insidious
and frightening threat to our democracy – invites
comparison: not because of the viral impact but
because we mishandled it so catastrophically.
The same applies to crime. We should
rigorously seek evidence-based solutions.
Until now, we have not. As with AIDS, this
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20 A Dissel, Tracking transformation in South African prisons,
Track Two, 11, 2002.
21 L Muntingh, An analytical study of South African prison
reform after 1994, PhD thesis, University of the Western
Cape, 2012, 385.
22 Department of Correctional Services, Jali Commission of
Inquiry into alleged incidents of corruption, maladministration,
violence or intimidation in the Department of Correctional
Services, 2005, 444.
23 Act 41 of 1971.
24 S v Gibson 1974 (4) SA 478 (A) at 481H-482B.
25 S v Mpetha 1985 (3) SA 702 (A) at 706H (Corbett JA) and
710D-E (van Heerden JA, who as counsel eleven years
before had argued for the appellant in S v Gibson). At issue
was the five-year minimum sentence under the Terrorism Act
83 of 1967.
26 In S v Vilakazi 2012 (6) SA 353 (SCA) at para 10, Nugent JA
pointed out that a sophisticated system to construct
guidelines to secure consistency in sentencing was
subsequently recommended by the South African Law
Reform Commission (SALRC) in December 2000 – a
recommendation made after a comprehensive review of
sentencing practice in this country and abroad. But the
sophisticated guideline-system the SALRC recommended,
which ‘would have been welcome to many judges who face
the difficult task of sentencing’, was never introduced.
Instead, the ‘temporary regime’ in the 1997 statute became
permanent.
27 Library of Congress, Sentencing guidelines: South Africa,
www.loc.gov/law/help/sentencing-guidelines/southafrica.
php.
28 South African Law Commission (SALRC), Discussion Paper
91: Project 82, 16.
29 S Terblanche, Mandatory and minimum sentences:
Considering s 51 of the Criminal Law Amendment Act 1997,
Acta Juridica, 2003, https://hdl.handle.net/10520/EJC52633
gives a full exposition of the import and language of the
amending statute.
30 Section 51(5).
31 Section 51(4).
32 SALRC, Discussion Paper, xix.
33 Van Zyl Smit, Swimming against the tide, 203.
34 Hansard, Debates of the National Assembly 16 November
1997, cols. 608–8.
35 Section 53 of the Criminal Law Amendment Act of 1997
states: ‘Sections 51 [minimum sentences for certain serious
offences] and 52 shall, subject to subsections (2) and (3),
cease to have effect after the expiry of two years from the
commencement of this Act’.
36 Act 38 of 2007.
37 S Terblanche, Sentencing guidelines for South Africa:
Lessons from elsewhere, South African Law Journal, 120:4,
2003, 858, https://heinonline.org/HOL/P?h=hein.journals/
soaf120&i=868.
38 Section 51(3)(a).
39 SALRC, Discussion Paper, xviii.
40 See ‘Submission to the Minister of Justice and Constitutional
Development in response to the evaluation of the Criminal
Law Amendment Act 105 of 1997’ prepared by The Western
Cape Consortium of Violence Against Women, 2005.
41 Department of Correctional Services, Annual Report
2017/2018, 28.
42 Department of Correctional Services, Annual Report 1995, 5.
43 Established under Chapters IX and X of the Correctional
Services Act 111of 1998.
costs us dearly. We are struggling so much to
stop ourselves from drowning that we are not
learning to swim. We are so stuck in our crisis
that we are not seeing the solutions available
to us.
But there are reasons to be optimistic. The new
government is currently gradually addressing
the insidious harms of criminal syndicalism,
through the Zondo Commission of Inquiry into
Alleged State Capture. A new and credible
head of the NPA has taken office. Significantly,
the new Minister of Justice and Correctional
Services, Ronald Lamola concedes that the
minimum sentencing legislation has contributed
to the increasing prison population, which
has led to overcrowding that has negatively
impacted the functioning of correctional centres
and the conditions for inmates in prisons.110 On
gender based violence and the call to reinstate
the death penalty, the spokesperson for Minister
Lamola has stated that the death penalty will
not deal with femicide and other forms of
violence against women and children.111 In
addition, recent judgments112 handed down
by the Constitutional Court indicate a strong
commitment to a just system and a willingness
to challenge the mechanisms developed during
the post-apartheid ‘crime wave’.
There does appear to be political will to tackle
the perils of our criminal justice system. The
social, legal and political arena has changed
significantly. Yet, with the current surge in
crime113 we must not revert to perpetuating the
pointless punitive justice rhetoric and policies.
We have tried them. And they have not worked.
It is imperative, and in our own interests, to
consider a more restorative and rehabilitative
approach to justice coupled with victim-focused
measures and institution-building. And this is
in line with global trends. There are no simple
quick solutions.
To comment on this article visit
http://www.issafrica.org/sacq.php
Notes
1 Edwin Cameron is a former Justice of the Constitutional
Court of South Africa. He is currently serving as the
Inspecting Judge for the Judicial Inspectorate for
Correctional Services. He is greatly indebted to his law clerk,
Rebecca Gore, for extensive help in drafting and referencing
this article. The text of this article was first delivered at the
University of Cape Town as the 2019 Bennie Rabinowitz
Lecture, which was held on 11 September 2019. The author
wishes also to acknowledge Bennie Rabinowitz, who has
personified the spirit of generous inquiry, social commitment
and deep personal humility, for his unfailing warmth and
support over the years for various heterodox causes and
views.
2 E Cameron, Imprisoning the nation: minimum sentences in
South Africa, Paper presented at Dean’s Distinguished
Lecture at the University of the Western Cape, 19 October
2017, www.concourt.org.za/images/phocadownload/justice_
cameron/UWC-Deans-distinguished-lecture-19-October-
2017--Minimum-Sentences.pdf.
3 Department of Correctional Services, Draft White Paper on
Corrections in South Africa, 2003, 6.
4 Department of Correctional Services, Draft White Paper on
Corrections in South Africa, 2003.
5 A Dissel and S Ellis, Reform and stasis: Transformation in
South African prisons, Critique Internationale, 2002.
6 Prior to May 2014, the Department of Correctional Services
was a separate department and the Justice Department was
named the Department of Justice and Constitutional
Development.
7 South African Human Rights Commission, Report of The
National Prisons Project, 1998, www.sahrc.org.za/home/21/
files/Reports/The%20Nationals%20Prisons%20Project%20
of%20SAHRC.1998.pdf.
8 South African Human Rights Commission, Report of the
national Prisons Project, 3.
9 Section 35(2)(e) of the Bill of Rights.
10 D Van Zyl Smit, Swimming against the tide: Controlling the
prison population in the new South Africa in W Dixon and E
van der Spuy (eds) Justice Gained? Crime and Crime Control
in South Africa’s Transition, Cape Town: UCT Press, 2004.
11 C De Kock, A Kriegler and M Shaw, A citizen’s guide to
crime statistics: 1994–2015, Centre of Criminology, 2015.
12 M Schönteich and A Louw, Crime trends in South Africa
1985–1998, Centre for the Study of Violence and
Reconciliation, 1999.
13 P Burton, A du Plessis, T Leggett and A Louw, National
victims of crime survey South Africa 2003, ISS Monograph
101, 2004, 15.
14 D Van Zyl Smit, Swimming against the tide, 238.
15 J Redpath, Unsustainable and unjust: Criminal justice policy
and remand detention since 1994, South African Crime
Quarterly, 48, 2014, https://doi.org/10.4314/sacq.v48i1.3.
16 D Van Zyl Smit, Swimming against the tide, 232.
17 S Tshwete, Remarks at a Parliamentary Briefing, 28 June
1999. Quoted in C Ballard and R Subramanian, Lessons
from the past: remand detention and pre-trial services, South
African Crime Quarterly, 2013, 17–8, https://doi.
org/10.17159/2413-3108/2013/v0i44a816.
18 Criminal Procedure Second Amendment Act 75 of 1995,
which came into operation on 21 September 1995 and
Criminal Procedure Second Amendment Act 85 of 1997,
which came into operation on 1 August 1998.
19 Sections 4 and 9 of the Prevention of Organised Crime Act
121 of 1998.
44 Terblanche, Sentencing guidelines for South Africa.
45 S v Makwanyane [1995] ZACC 3; 1995 (6) BCLR 665; 1995
(3) SA 391 (CC).
46 South Africa History Online, The South African Constitutional
Court abolishes the death penalty, 1995, www.sahistory.org.
za/dated-event/sa-constitutional-court-abolishes-death-
penalty-0.
47 Judicial Inspectorate for Correctional Services, Annual report
for the period 2013–2014, 32.
48 R Jules-Marquet, The State of South African Prisons, NICRO
Public Education Series 1, 2014, www.nicro.org.za/
wp-content/uploads/2014/04/Public-Education-Paper-The-
State-of-South-African-Prisons-2014.pdf.
49 See J Steinberg, Nongoloza’s children: Western Cape prison
gangs during and after Apartheid, Centre for the Study of
Violence and Reconciliation, 2004; JM Lötter, Prison gangs
in South Africa: A description, South African Journal of
Sociology, 19:2, 1988, https://www.doi.org/10.1080/025801
44.1988.10558376.
50 E Cameron, Report: Pollsmoor Correctional Centre
– Remand Centre and Women’s Centre, 2015, www.
constitutionalcourt.org.za/site/PrisonVisits/Cameron/
Pollsmoor-Prison-Report-23-April-2015-Justice-Edwin-
Cameron-FINAL-for-web.pdf.
51 Judicial Inspectorate of Prisons, Annual Report for the Period
2017–2018, 27.
52 Ibid.
53 Without an official estimate there seems to be a discrepancy
in the exact recidivism rates but all these rates are particularly
high on global standards.
54 Inspecting Judge from 1 April 2000 – 31 March 2006.
55 Judicial Inspectorate of Prisons, Annual Report for the Period
2003–2004, 21.
56 E Cameron, Imprisoning the nation: minimum sentences in
South Africa has been cited in EN Keehn and A Nevin,
Health, human rights, and the transformation of punishment:
South African litigation to address HIV and tuberculosis in
prisons, Health and Human Rights, 20:1, 2018, https://www.
ncbi.nlm.nih.gov/pmc/articles/PMC6039737/.
57 E Hinton, LS Henderson and C Reed, An unjust burden: The
disparate treatment of black Americans in the criminal justice
system, Vera Institute of Justice, 2018, www.theguardian.
com/us-news/2016/jun/18/mass-incarceration-black-
americans-higher-rates-disparities-report. Also see MW
Bennett, How mandatory minimum forces me to send more
than 1 000 nonviolent drug offenders to federal prison, The
Nation, 2012, www.thenation.com/article/how-mandatory-
minimums-forced-me-send-more-1000-nonviolent-drug-
offenders-federal-pri/.
58 See further http://detentionjusticeforum.org.za/.
59 Note, during the period 1994–2011 violent crime dipped and
then started rising again. See United Nations Office on Drugs
and Crime, Global study on homicide: Homicide trends,
patterns and criminal justice responses, 2019, www.unodc.
org/documents/data-and-analysis/gsh/Booklet2.pdf.
60 C Bhengu, Thousands sign petition calling for penalty on
crimes against women, TimesLive (3 September 2019),
www.timeslive.co.za/news/south-africa/2019-09-03-
thousands-sign-petition-calling-for-death-penalty-on-crimes-
against-women/; J Gerber, Death penalty referendum: ATM
wants Parliament, Ramaphosa to give SA a say, News24 (4
September 2019), www.news24.com/SouthAfrica/News/
death-penalty-referendum-atm-wants-parliament-
ramaphosa-to-give-sa-a-say-20190904.
61 Stats SA, Youth unemployment rate increases in Q1: 2019,
2019, www.statssa.gov.za/?p=12121
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98 Duty solicitors can also be found in other jurisdictions such
as, England, Wales, Canada, Australia and New Zealand.
99 Open Society Justice Initiative, Lawyer at the police door:
How REPLACE provides legal aid in Nigeria, (March 2015),
www.justiceinitiative.org/publications/lawyer-police-station-
door-how-replace-provides-legal-aid-nigeria.
100 De Ruiter and Hardy, Study on the use of bail in South Africa.
101 [2019] ZACC 32; 2019 JDR 1494 (CC).
102 JJ Kerbs and KM Jolley, A Commentary on age segregation
for older prisoners: Philosophical and pragmatic
considerations for correctional systems, Criminal Justice
Review, 34:1, 2009, https://doi.
org/10.1177/0734016808324245.
103 PC Perkins and E Seawell, Human dignity and evolving
standards of decency: Disciplinary segregation of inmates in
South Africa and the United States, (paper in progress),
www.nylslawreview.com/wp-content/uploads/
sites/16/2014/11/Perkins-Seawell.pdf; ENCA, Solitary
confinement of six Pretoria prisoners in the spotlight, (July 16
2015), www.enca.com/southafrica/solitary-confinement-six-
pretoria-prisoners-spotlight.
104 SALRC.
105 SALRC: sentences must consider the interests of victims,
victim impact statements, informing victims of the release or
sentence of their accused and other mechanisms.
106 De Ruiter and Hardy, Study on the use of bail in South Africa.
62 GS Becker, Crime and punishment: An economic approach,
Journal of Political Economy, 1968, https://www.jstor.org/
stable/1830482.
63 Africa Check, Factsheet: the state of South Africa’s prisons,
2017, https://africacheck.org/factsheets/factsheet-the-state-
of-south-africas-prisons/
64 Muntingh, An analytical study of South African prison reform
after 1994, 356.
65 G Silber and N Geffen, Race, class and violent crime in
South Africa: Dispelling the ‘Huntley thesis’, South African
Crime Quarterly, 41, 2009, https://doi.org/10.17159/2413-
3108/2009/v0i30a897.
66 Democratic Alliance v President of South Africa [2012] ZACC
24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5
October 2012), nullifying the appointment of Menzi Simelane
as National Director of Public Prosecutions; Corruption
Watch NPC v President of the Republic of South Africa;
Nxasana v Corruption Watch NPC [2018] ZACC 23; 2018
(10) BCLR 1179 (CC); 2018 (2) SACR 442 (CC) (13 August
2018), nullifying the appointment of Shaun Abrahams.
67 That is on average 58 murders and 114 rapes reported per
day. South African Police Services, 2018/2019 Crime Stats
Presentation (April to March 2018/2019), www.saps.gov.za/
services/april-march_2018_19_long_version_presentation.
pdf.
68 J Omar, Violence against women: Law is not the solution,
Daily Maverick, 2019, www.dailymaverick.co.za/
opinionista/2019-09-06-violence-against-women-law-is-not-
the-solution/.
69 [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA
393 (CC).
70 The Constitutional Court quoted with apparent endorsement
(in para 34) the conclusion of the High Court that ‘The
evidence, holistically read together with the arguments
presented to this court, suggests that the blunt instrument of
the criminal law as employed in the impugned legislation is
disproportionate to the harms that the legislation seeks to
curb insofar as the personal use and consumption of
cannabis is concerned’ (High Court judgment para 108,
www.saflii.org/za/cases/ZAWCHC/2017/30.html).
71 Open Society Foundations, Why we need drug policy reform,
2019, www.opensocietyfoundations.org/explainers/
why-we-need-drug-policy-reform.
72 The mandatory minimum sentencing regime flowed from
recommendations by two committees established by the
Minister of Justice. One recommended the establishment of
a Sentencing Council.
73 Vilakazi. Also see Minnesota Sentencing Guidelines, which
are generated by an independent commission.
74 See Loza v Police Station Commander, Durbanville 1964 (2)
545 (AD); section 17 of the General laws Amendment Act 37
of 1963 and see section 6 of the Terrorism Act 83 of 1967.
75 Protects against deprivation of freedom arbitrarily and
without just cause and to be detained without trial.
76 Affords every person arrested the right to be released from
detention ‘if the interests of justice permit, subject to
reasonable conditions’.
77 Ballard and Subramanian, Lessons from the past; J Sarkin, E
Steyn, D van Zyl Smit and R Paschke, The Constitutional
Court bail decision: Individual liberty in crisis, South African
Journal on Human Rights, 16:2, 2000, https://doi.org/10.108
0/02587203.2000.11827597.
78 S Mkhwanazi, Move to tighten SA’s bail laws, IOL (6 March
2017), www.iol.co.za/news/move-to-tighten-sas-bail-
laws-8065927.
79 Parliamentary Monitoring Group, Justice, Crime Prevention
and Security (JCPS) Post-SONA Cluster Media Briefing, (5
March 2017), https://pmg.org.za/briefing/24080/.
80 SE Van der Merwe, Bail and other forms of release, in JJ
Joubert (ed) Criminal Procedure Handbook 12 ed, Cape
Town: Juta & Co Ltd, 2017.
81 Dlamini.
82 In S v Acheson 1991 (2) SA 805 (Nm) at 822A-B ‘an
accused cannot be kept in detention pending his trial as a
form of anticipatory punishment. The presumption of the law
is that he is innocent until his guilt has been established in
Court’.
83 E Cameron, Visit to Johannesburg Correctional Centre,
Diepkloof, [to be published].
84 N De Ruiter and K Hardy, Study on the use of bail in South
Africa, APCOF Research Series, 2018.
85 Section 602B(a) provides that if it is in the interests of justice
for the accused to be released on bail and if the payment of
a sum of money is to be considered as a condition of bail, a
court must hold a separate inquiry into the ability of the
accused to pay the sum. Section 602B(b) authorises to court
to consider bail conditions that do not include monetary
amounts.
86 Conducted by the South African Institute of Race Relations
(IRR). This initiative could decease prison population
immediately by 5%.
87 See South African Institute of Race Relations, IRR urges
lawmakers to act on ‘prisoners of poverty’ in South Africa’s
jails, 2016, https://irr.org.za/media/media-releases/
irr-urges-lawmakers-to-act-on-2018prisoners-of-
poverty2019-in-south-africa2019s-jails. Also see van der
Merwe, Bail and other forms of release 221.
88 See Annexure A of Cameron’s ‘Visit to Johannesburg
Correctional Centre, Diepkloof’.
89 See Judicial Inspectorate of Correctional Services Report
2003–2004, 22.
90 However, requirements must be met: it must be the
offender’s first offence, the offence must not be serious, the
offence must have accepted full responsibility for the
offence(s) as described in the summary of the facts, the legal
rights of the offender must have been explained to him or her
and the offender must agree to the terms of diversion. Also
see S Maimane, Restorative justice for adult offenders in
South Africa: A comparative study with Canada, New
Zealand, England and Wales, LLM Thesis at the University of
Pretoria, 2017.
91 Article 135(2) of the Armenian Criminal Code of Procedure
‘Arrest and its substitute monetary bail, can be imposed
against the accused only for crimes punishable by more than
one-year imprisonment or when there are sufficient grounds
to assume that the accused can commit actions mentioned
in the first part of the present article’.
92 De Ruiter and Hardy, Study on the use of bail in South Africa.
93 Ibid. Pre-trial services have also shown some success in the
United States; when rendered effectively unnecessary
remand detention is minimized, see Human Rights Watch,
The price of freedom: Bail and pre-trial detention of low
income nonfelony defendants in New York City, 2010, www.
hrw.org/sites/default/files/reports/us1210webwcover_0.pdf.
94 Vera Institute of Justice.
95 De Ruiter and Hardy, Study on the use of bail in South Africa.
See also M Schönteich, Making courts work: A review of the
IJS court centre in Port Elizabeth, ISS Monograph 75, 2002.
96 De Ruiter and Hardy, Study on the use of bail in South Africa.
97 SALRC, 22.
107 Ibid.
108 J Etheridge, Crime stats: Policing alone isn’t enough to stem
violence in SA – ISS, News 24 (12 September 2019), www.
news24.com/SouthAfrica/News/crime-stats-policing-alone-
isnt-enough-to-stem-violence-in-sa-iss-20190912.
109 E Cameron, Report: Devon Correctional Centre, Modderbee
Management Area, (visit took place 27 June 2017), www.
concourt.org.za/images/phocadownload/prison_visits/
cameron/Prisons-Devon-Correctional-Centre-November-
2017-Reportx17-tracked-input.pdf.
110 L Ensor, Prison overcrowding a ‘disturbing’ problem for
Government, (17 July 2019) Business Day, www.
businesslive.co.za/bd/national/2019-07-17-prison-
overcrowding-a-disturbing-problem-for-government/.
111 K Somdyala, Death penalty will not deal with femicide and
violence against women and children – Justice Dept,
News24 (4 September 2019), www.news24.com/
SouthAfrica/News/death-penalty-will-not-deal-with-femicide-
and-violence-against-women-and-children-justice-
dept-20190904
112 See above Lee, Prince, Phaahla and De Klerk as well as Lee
v Minister of Correctional Services [2012] ZACC 30; 2013 (2)
BCLR 129 (CC); 2013 (2) SA 144 (CC) and Phaahla v
Minister of Justice and Correctional Services [2019] ZACC
18; 2019 (2) SACR 88 (CC); 2019 (7) BCLR 795 (CC).
113 Business Day, Crime data shows SA at war with itself, 13
September 2019.
