Law, Democracy & Development - Volume 4, Issue 2, 2000
Volumes & issues
Volume 4, Issue 2, 2000
Author Jeremy SarkinSource: Law, Democracy & Development 4, pp VII –XXVII (2000)More Less
Crime and criminal violence are probably the most important obstacles to public acceptance of human rights. This can certainly undermine the achievement of a human rights culture in South Africa's young democracy. The University of the Western Cape and the University of Ghent in Belgium hosted a conference on crime and human rights on 28 and 29 July 2000. Judge Pius Langa, Deputy President of the Constitutional Court of South Africa, delivered the opening address. The focus of the conference was the intersection and tension between crime and human rights in three main areas - policing, the courts, and prisons.
Author Pius LangaSource: Law, Democracy & Development 4, pp 115 –120 (2000)More Less
Ours is a young democracy. It is a constitutional state, the supreme law of which is a Constitution that is an extremely progressive one by world standards. Like all constitutions, it sets out the basic framework of the system of governance in this country. It also provides a blueprint of the type of South Africa we aspire to become. It thus tells us, in broad terms, what we are, how we are governed, what our rights and entitlements are and also what our responsibilities or obligations are. Implicit in its provisions, however, is a vision of what we can be.
Source: Law, Democracy & Development 4, pp 121 –135 (2000)More Less
The transition to constitutional democracy in South Africa occasioned profound institutional and normative changes to the criminal justice system. It raised awkward and prickly challenges to reorient the system so as to make it compatible with the new constitutional values, and enable it to apprehend and prosecute criminals within the confines and ethos of the Bill of Rights (Chapter 2 of the Constitution).
Irreconcilable differences? Building a human rights culture and dealing with crime in post apartheid South AfricaAuthor Piers PigouSource: Law, Democracy & Development 4, pp 137 –150 (2000)More Less
The debate about crime and human rights must be set firmly within the broader context of rights protection and delivery in South Africa. Having emerged from a past characterised by violations rather than respect for fundamental rights, the adoption of the "interim" 1993 Constitution and the "final" 1996 Constitution for the first time provided a justifiable Bill of Rights to protect all its inhabitants. The inclusion of protections relating to, amongst others, equality, dignity, the treatment of children and incarcerated persons reflected the new order's commitment to avoid repeating the mistakes of the previous political order. Significantly, the inclusion of socio-economic rights guaranteed access to rights such as education and emergency medical treatment, and the progressive realisation of other rights such as access to housing, water and environmental protections. In addition, the state is given specific responsibility to respect, protect, promote and fulfil the rights in the Bill of Rights and is therefore the guardian and guarantor of those rights.
Fighting crime while promoting human rights in the police, the court and the prisons in South AfricaAuthor Jeremy SarkingSource: Law, Democracy & Development 4, pp 151 –172 (2000)More Less
That South Africa is beset by crime is beyond question. It continues to be a considerable impediment to the development of a human rights culture. It often undermines good governance and democratic principles and has a very dire impact on the economy. At the same time the criminal justice system continues to be in crisis, it appears to many to be far from competent. Relatively few suspected criminals appear before the courts and many are acquitted. This sends the message that crime does pay. The norm of few and failed prosecutions also perpetuates a lack of respect among citizens for the rule of law and human rights. This further undermines the legitimacy of the courts. While laws are being enacted that appeal to populist "get tough" notions they do little to curb crime itself. These measures fail to address the real causes of crime and do little to stop crime. They are aimed primarily at appeasing public sentiment, which they hardly achieve, at the expense of human rights and freedoms. This article examines examples of the tensions that exist in South Africa in the areas of crime, human rights and policing, crime, human rights and the courts and crime, human rights and prisons. It makes recommendations of what could be done to try and resolve some of these difficulties.
Should fighting organised crime be a priority as South Africa deals with crime and human rights, and does the need to combat crime justify extraordinary measures that may limit rights?Author Jean RedpathSource: Law, Democracy & Development 4, pp 173 –180 (2000)More Less
Are extraordinary measures against organised crime justified? Is organised crime such a threat, and is its nature such that it cannot be addressed by ordinary measures that do not limit rights? Is it appropriate for South Africa to prioritise it, perhaps to the detriment of the policing of other crime?
Author Riaz SalojeeSource: Law, Democracy & Development 4, pp 181 –190 (2000)More Less
I am delighted to be able to participate and hopefully contribute to this very important discourse on crime and human rights. This discourse is always timely, but more so in South Africa at this time in our history, when we bask in the international glow of admiration for the gains we have made in the advance of human rights. Let us not forget through complacency or opportunism the pledge we made to the thousands of our generation and those before us who lived and died resisting oppression, that we shall tirelessly exert to the fullest to realise the dream of a dignified life for all, the dream of democracy for the people of this part of the world.
Author Clifford ShearingSource: Law, Democracy & Development 4, pp 191 –197 (2000)More Less
We live in a world governed by two sets of institutions. Each set operates under the influence of different mentalities and deploys different technologies. Nowhere is this more apparent than in the governance of security. Our institutions of criminal justice exist alongside other institutions, primarily corporate ones, which also govern security. An obvious instance of this is to be found in policing. Here one finds an increasingly complex archipelago of governance with distinctly feudal resonances.
The pathological malaise within the criminal justice system : why the courts are not seen to be deliveringAuthor Lovell FernandezSource: Law, Democracy & Development 4, pp 199 –208 (2000)More Less
In 1997 the Ministry of Justice published a document entitled Justice Vision 2000. This document is a strategic plan for the transformation and restructuring of the justice system in South Africa. Justice Vision 2000 identifies seven result areas, namely the Department of Justice; courts and the administration of justice; crime, safety and security; access to justice; human resources development; the legal profession; and state legal and services. This paper focuses on the key result area 'crime and security', more generally known as the criminal justice system.
Author Esther SteynSource: Law, Democracy & Development 4, pp 209 –220 (2000)More Less
Restriction of liberty of the unconvicted, and accordingly presumed innocent, presents a challenge to every legal system that attempts seriously to balance the concerns of crime control and due process. In any new constitutional dispensation, this balance has to be re-appraised. This is particularly so because constitutions tend to emphasise the right to liberty of the individual and that in itself challenges anew those who wish to restrict this right. South Africa has recently faced this challenge in respect of its regime for criminal suspects on bail and, by enacting the 1997 Criminal Procedure Second Amendment Act, has opted for extraordinarily restrictive bail measures. These amendments were to be the subject of a recent judgment by the Constitutional Court.