The Department of Justice and Constitutional Development (DOJ&CD) is appealing to citizens to make their voices heard as the deadline for comments into the discussion papers for the review of the Criminal Procedure Act draws closer.
Last month, the Deputy Ministers in the Justice, Crime Prevention and Security (JCPS) Cluster welcomed the publication of the discussion papers on the review of the Act which were released by the South African Law Reform Commission (SALRC).
The review seeks to address systemic challenges in the Act, particularly in relation to provisions that deal with arrest, bail, alternative dispute resolution, and victim participation in the criminal justice process.
In an interview with SAnews, the Deputy Director-General for Court Administration at the DOJ&CD Lucky Mohalaba said the Act was outdated.
“It’s a pre-1994 piece of legislation and one of the key areas which the department and the [JCPS] cluster is faced with, is how do we ensure that important legislation like the Criminal Procedure Act [CPA] is reviewed to be in line with the Constitution? Our Constitution actually was signed into law after the Criminal Procedure Act,” he remarked of the 1977 legislation.
The act makes provision for procedures and related matters in criminal proceedings.
“This initiative from the department as led by Deputy Minister [Andries] Nel is really a milestone. Firstly to ensure that we comply and are in line with the constitutional imperatives including the issues that relate to equality [and] transparency.
“The work that the Law Reform Commission has undertaken is going to result in the reform of legislation, including the Criminal Procedure Act,” said Mohalaba.
The SALRC released the discussion papers covering the pre-trial stage on the Bail System Reform, Arrest Dispensation Reform, Alternative Dispute Resolution (ADR) in Criminal Matters and the Non-Trial Resolutions (NTRs): Deferred Prosecution, Alternative Dispute Resolution and Non-Prosecution.
“In the main, there are components where the issue of the bail dispensation is going to be looked at. Secondly, the issues that relate to the arrest dispensation is going to be looked at. Part of the issues raised there is [that] should people be arrested for having committed certain crimes or should they be given dates to come to court and appear in court for those crimes?
“Are we not increasing the numbers in our correctional centres by arresting everyone? So those are the areas that the research papers are looking at,” the DDG said of the four papers that were first published on 20 February 2025.
This as the comment period into the documents will close on 31 March 2025.
Content of the documents
The Bail System Reform discussion document speaks to ensuring a balanced approach that upholds the rights of accused persons while addressing public safety concerns, reducing lengthy pre-trial detention, and easing overcrowding in correctional facilities.
Chapter 1 of the Review of South Africa’s Bail System document, states that the country’s bail law forms an “integral part of the Criminal Procedure Act of 1977 a law of apartheid extraction which has been in existence for almost five decades.”
It further states that it is “also probable that the relevant provisions have become obsolete and redundant.”
South Africa’s bail system is regulated under Chapter 9 of the CPA with the review aiming to align bail laws with constitutional principles while also tackling inefficiencies.
Challenges with bail for foreign nationals, limited police powers in the granting of bail, the strict verification of accused persons’ residential addresses as well as affordability issues that prevent accused individuals from securing bail are some of the deficiencies identified in the current bail system according to Chapter 2 of the document.
The proposals for reform include enhancing victim rights where courts should consider victim safety when granting bail as well as that victims should be informed of bail proceedings and allowed to express their concerns.
The proposals for reform in the document also talks to reducing delays and overcrowding where automatic bail reviews to avoid unnecessary detentions is introduced while revising bail conditions. The proposal is that alternative measures be found for those who can’t afford bail.
The document states that in the late 1990s and early 2000s, the Commission “lamented the failure of the law to cater specifically for victims of crime. It argued, at the time, that if the position of victims was not drastically reformed in the criminal justice system, it would lead to a legitimacy crisis.”
The Arrest Dispensation Reform speaks to promoting alternative measures, such as summons, to secure court attendance and reduce unlawful and unnecessary arrests.
Chapter 3 of this discussion paper states that the CPA outlines the methods for securing the court attendance of accused persons. This as Section 38 of the legislation “provides that the methods of securing the court appearance of accused persons are arrest, written notice, summons and indictment.”
However, the CPA doesn’t specify which of the measures should be used in “certain situations, nor does it mandate the utilisation of the least intrusive measure.”
The paper notes that arrest should only be used as a last resort when other methods (summons, written notices) are inadequate and that police discretion in arrest decisions is broad, often leading to unnecessary detentions and overcrowding in prisons.
The paper proposes the amendment of Section 39 of the CPA to define the purpose of arrest, preventing misuse as well as the amendment of Section 40 to restrict arrests without warrants, ensuring judicial oversight.
Section 39 of the Act states that an arrest can be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcibly confining his body.
It also states that at the time of effecting the arrest or immediately after effecting the arrest, the person effecting it should inform the arrested person of the cause of the arrest. It adds that in an arrest effected by virtue of a warrant, upon demand of the person arrested, a copy of the warrant must be given.
Meanwhile, section 40 of the Act talks to the arrest by peace officers. This is whereby a peace officer may without a warrant arrest any person who commits or attempts to commit any offence in his presence or a person who has escaped or who attempts to escape from lawful custody, among others.
According to the CPA, the Minister of Justice and Constitutional Development has the power to declare by notice in the Government Gazette any category of persons, by virtue of their office, as peace officers for specific purposes.
This as peace officers are not police officials.
The proposal made in the document speaks to clarifying the powers of peace officers as well as creating an oversight mechanism. It also notes that electronic summons and written notice could replace many physical arrests among others.
The third document which is the Alternative Dispute Resolution (ADR) in Criminal Matters, speaks to challenges in the criminal justice system such as the over-reliance on imprisonment leading to overcrowding and the high costs of traditional prosecution among others.
The document notes that the country’s “legal system does not make provision for the coherent and unified regulation of ADR in criminal matters, a concept which, in foreign jurisdictions may be referred to in a number of ways, including discretionary prosecution, waiver of prosecution and out of court settlements.”
The proposed reforms it makes include the expanded use of ADR for minor offenses. This includes conditional withdrawals of prosecution, greater victim participation in ADR processes as well as focussing on restorative justice that includes victim-offender mediation. This also includes community-based sentencing alternatives such as rehabilitation programmes and community service.
The fourth discussion document known as the Non-Trial Resolutions (NTRs): Deferred Prosecution, Alternative Dispute Resolution and Non-Prosecution explores NTRs as an alternative to traditional criminal prosecutions.
It focuses on Deferred Prosecution Agreements (DPAs), Alternative Dispute Resolution (ADR), and Non-Prosecution Agreements (NPAs), particularly in corruption and financial crime cases.
It states that traditional criminal trials for corporate and economic crimes are slow, costly, and complex adding that NTRs encourage self-reporting, corporate reform, and financial restitution without lengthy trials.
It states that the country lacks a structured legal framework for non-trial resolutions, unlike countries such as the United Kingdom and the United States of America.
The document adds that the Zondo Commission recommends the proposed introduction of Deferred Prosecution Agreements for companies implicated in corruption. Appointed by the President, The Zondo Commission was a commission of inquiry that investigated state capture in South Africa.
The DPAs allow companies to admit wrongdoing, pay fines, and commit to reforms in exchange for prosecutorial leniency.
The benefits of NTRs are that they encourage companies to cooperate with law enforcement and also reduces court backlogs while prioritising serious cases for trial.
The recommendation is that NTRs should be legislated to provide clear guidelines for corporate settlements as well as ensure judicial oversight to prevent abuse among others.
In November 2023, former Minister of Justice and Correctional Services Ronald Lamola appointed an Advisory Committee consisting of eight experts chaired by the former Judge President of Mpumalanga, Justice Francis Legodi to advise the Law Reform Commission on the review of the Criminal Justice System.
The Law Reform Commission is currently chaired by former Constitutional Court judge, Justice Chris Jafta.
Reforming SA’s laws
At the release of the discussion papers, Deputy Minister Nel spoke of the need to transform the justice system.
The DDG said discussion documents provide an opportunity for citizens to debate the proposals.
“I’m quite certain that given the launch of the discussion documents these then will present an opportunity for South Africans to debate the proposals made in the documents which will ultimately result in the Criminal Procedure Bill which will replace the current Criminal Procedure Act of 1977 so that we are more aligned to our constitutional values as a country.
“We really wish to welcome members of the public, NGOs [non-government organisations], community organisations to make sure that they make inputs into the discussion papers. This is quite an important area for us as a country going forward to reform and modernise the laws that are applicable currently,” he said.
The discussion papers which were released at a media briefing in Pretoria 20 February, can be accessed at https://www.justice.gov.za/salrc/dpapers.htm .
–SAnews.gov.za