Justice system must change

2017-07-18 06:01

SOUTH Africa is renowned globally for violent crime and rape. Law enforcement in South Africa has a monumental job.

The Free Market Foundation (FMF) continues to advocate for radical transformation of the criminal justice system to ensure law, order, peace and security in South Africa, and the transition from the apartheid-era authoritarian behemoth into a system that serves to protect the people and holds the government to account.

Decriminalising victimless crimes, removing incentives for corruption within discretionary powers and keeping the judiciary independent is a good start.

The FMF calls on the government to abolish victimless crimes, which include prostitution, some traffic offences, using drugs and contravening exchange regulations. Victimless crimes are those acts or omissions criminalised by the government despite there being no complainant. These are distinguished from victimisation crimes where an individual’s rights have been criminally violated. Most victimisation crimes exist without having to be declared in an act or regulation to be unlawful, such as assault, theft, rape, kidnapping and murder.

Pursuing victimless crimes prevents the police from fighting real criminals. Police resources are under pressure. One way to alleviate this is to stop wasting time and resources pursuing value-subjective crimes where no individual rights have been violated and allow the police to focus on real crimes against people and property. The practical case is obvious —police resources targeted efficiently —but there is also a philosophical argument. Our liberal democratic society places a high value on individual liberty. The decriminalisation of victimless crimes would mean legalising the actions of a substantial number of ordinary, well-intentioned citizens who aspire only to get on with life without violating the rights of those around them but who, often without intention, fall foul of the law.

The sheer number of traffic regulations, which are often arbitrary and sometimes unknown to motorists, turn practically all citizens into criminals. Citizens seeking help with drug abuse are deemed criminals. Outlawing prostitution — the act of engaging in voluntary conduct for money — turns many people, mainly women, into criminals and the recent resolution by the South African Law Reform Commission to keep prostitution a crime is mistaken.

Corruption is a major crime in SA. Yet the major cause of corruption is the increasing use of discretionary powers by officials, which presents those who hold it with irresistible incentives. Wherever government has the discretion to grant or withhold contracts, licences, protection, subsidies and other privileges, there is real or suspected corruption.

The only way to get money out of politics is to get politics out of money first, and ensure officials are bound by strict and clear criteria in exercising their powers.

A critical step towards a modern and independent legal system is to stop the ill-conceived idea of only appointing judges with a progressive or social-minded approach. This is dangerous and contrary to the rule of law. An independent judiciary is fundamental to a well-functioning democracy.

Politicising the judiciary will make the corruption problem worse and the decision by the ruling party to consider making a progressive mind-set of social activism part of the criteria for appointing judges to the bench is a dangerous move. In this case, “progressive” means the judiciary must favour government action in economic and social affairs rather than emphasise individual rights.

FMF legal researcher Martin van Staden said: “Judges should follow the letter of the Constitution and not the ideological preferences of whomever controls government. Constitutional democracy places less emphasis on which political party governs at any particular time and more on the values in the Constitution.”

South African judges are renowned for their eminence, impartiality and respect for the law. If value-subjective appointment criteria such as social activism are applied to the judiciary, the outcome is unpredictable and stands to delegitimise the courts. Politicising the judiciary will take our courts out of the dispute-resolving business and make it a third house of Parliament.

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