Creaking criminal justice system tries to do too much

Martin van Staden / Midjourney
Martin van Staden / Midjourney

This article was first published by Business Day on 30 May 2024

It is a criminal offence to ship a raw material mined in SA to another country to process it or turn it into something useful, unless you have a permission slip from the ministry of mineral resources & energy. Without that slip, you’re liable to a criminal fine of R500,000 per day that you operate.

It is a criminal offence to enter or occupy land without permission from the owner, which is fair enough, but it is also a criminal offence to evict someone who unlawfully occupies your property without first embarking on an elaborate and time-consuming court process. The punishment for protecting your property is a fine or imprisonment for up to two years.

If you’re on public transport, it is a criminal offence to wilfully inconvenience a fellow passenger. The penalty for doing so is not to be told off and thrown off the bus, as one might expect, but a term of imprisonment not exceeding three months or a fine of up to R10,000. Selling or renting out a copyrighted work without the consent of the copyright owner is a criminal offence that could land you in jail.

The minister or an MEC of transport has the power to criminalise the violation of any one of their regulations, and impose sanctions including prison time on rule breakers.

If you run your business in such a way that you do not exceed the revenue or staff complement thresholds that would make you a designated employer in terms of the Employment Equity Act, you will have committed a criminal offence.

None of these criminal offences are necessary and appropriate. Some, like failing to grow your business or inconveniencing someone else, are quite absurd and should never be subject to criminal proceedings.

Criminalising the violation of regulations improperly transfers the power to declare certain conduct criminal from the legislature to the executive arm of the government. It should never require a court order to prevent someone from violating your person or property. Directing economic activity should not be a matter for criminal law and business should never be subject to the say-so of a minister simply to serve some policy planning purpose. Copyright offences are more properly dealt with under civil law and should not be a matter for the police at all.

These examples all come from a novel project conducted by the Free Market Foundation (FMF) and named after section 12 of the constitution, which deals with freedom and security of the person.

The project aims to put criminal justice firmly on the electoral and political agenda and solicit the support and participation of the public. Among its activities, it is compiling a list of crimes to rate them by how just they are and by how proportional the penalties are.

It is a daunting project because crimes in SA are defined in a labyrinthine body of statutory law, common law, regulations and bylaws. While law enforcement authorities argue that ignorance of the law is no excuse, it is impossible to know all the many forms of conduct, often non-harmful and victimless, which are regarded as criminal by some or other ministry, regulator, executive council or municipality. Legal certainty, which is a key principle of the rule of law, is unattainable even for full-time legal professionals in SA.

While the police and courts are tied up dealing with all these petty and non-violent crimes, an astonishing 86 people are murdered in SA every day and 136 people are raped that we know about.

SA has the highest murder rate of any large country in the world — twice as high as peers such as Brazil, Nigeria and Venezuela. While the murder rate declined encouragingly after 1994, progress stopped in 2012 and it has been on a stubborn upward trajectory ever since.

Police targeted

The murder of police officers offers a microcosm of the greater criminal justice problem. Twenty-two police officers were killed during the third quarter of 2023. Despite what one assumes must be high motivation, the SA Police Service (SAPS) was able to track down and apprehend only 12 police killers during this period. And only two police killers were sentenced and convicted.

Security expert Gideon Joubert reports that the SAPS and the National Prosecuting Authority achieve only a 15% conviction rate for murder, 8% for rape and barely 3% for the “trio crimes” of car hijacking, house burglaries and business robberies.

Even so, SA’s prisons are overpopulated by 43%, often with non-violent and petty offenders, with no apparent plans to accommodate more prisoners.

Conduct should be considered criminal, and punished by fines or imprisonment, only if it materially harms the lives, liberties or property of victims. Conduct that is not strictly harmful, even if it is objectionable, should not be tying up police and judicial resources and should be left to civil law or not be considered offences at all.

The FMF argues that police power is too centralised and that devolving policing to provinces and municipalities will take the burden off a top-heavy bureaucracy. Delegating some police powers to community forums and private security companies, especially in the case of non-violent or victimless crimes, can also reduce the burden on the police.

The most basic purpose of government, and the reason society gives up its unbridled liberty to grant the state a monopoly on coercive force, is to secure common protection against violent threats to lives and property.

SA’s criminal justice system is failing at that core function. It would be greatly improved if it placed far more emphasis on combating violent crime, while decriminalising conduct that merely wastes the time, money and attention of the police and courts.


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The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation. This article may be republished without prior consent but with acknowledgement to the author.




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