2.4 The emergence of modern criminal law
2.4.3 South African criminal law
2.4.3.5 The pre-1994 apartheid era
95 South African Law Commission Protection of the Child Witness Project 71Working Paper 28
(1989).
96 Act 135 of 1991.
97 This section should be read together with sections 161 and 165 of the Criminal Procedure Act. 98 As amended by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007.
99 Bekink “Section 170A(1) of the Criminal Procedure Act of 1977: Do intermediaries need to be
sworn in or not? S v QN 2012 1 SACR 380 (KZP)” 2013 THRHR 285. Refer also to ch 5 below for a full discussion of section 170(A) of the Criminal Procedure Act of 1977.
The apartheid policy of the National Party, which came to power in 1948, brought a barrage of legislation to bear upon South Africans that, firstly, categorised them by race and then controlled their freedom according to their race group.100
Apartheid was a system of racial segregation that was enforced through the ruling party, the National Party (NP), from 1948 to 1994. Under this policy the rights of the black majority inhabitants of South Africa were curtailed in order to maintain white Afrikaner minority rule. This policy was not a new invention by the NP but had its roots in colonial times under Dutch and British rule. Prior to Union in 1910, the Cape, Natal, Orange Free State and the Transvaal each had their own policies on the franchise rights of non-whites. In the Cape the franchise qualifications were low and non-whites were not excluded. Natal experienced a shortage of skilled workers, which led to an influx of Indian immigrants. This in turn gave rise to the problem of the Indian vote. Despite a protest led by Mahatma Gandhi, in 1896 the British refused to approve the disenfranchisement of Indians, but instead promulgated a law excluding all non-whites from voting. The Republic of the Orange Free State was free from political and constitutional conflict and franchise rights were extremely liberal. After the Jameson Raid in the Transvaal the authorities in the Transvaal alerted the Orange Free State to the “dangers” of an influx of immigrants. In contrast to the Orange Free State, the Transvaal applied a system of disenfranchisement of non-whites. Despite many African communities expecting that the Cape’s non-racial franchise would be extended to the other colonies after unification in 1910, the contrary position was experienced. The Treaty of Vereeniging made the enfranchisement of non-whites subject to the consent of white people, which led to their disenfranchisement. Shortly afterwards in reaction to this position the African National Congress (ANC) was formed in 1912.101
100 “Cape Town’s History and Heritage” available at http://www.capetown.at/heritage/ history/
apartheid.htm (accessed 06/07/2013).
In 1931 the South African Parliament became sovereign with the passing of the Statute of Westminster. This did not change the prevailing situation but in fact promoted the disenfranchisement of people of colour as an official policy of racial segregation (apartheid) was embarked on by the NP following the general election in 1948. Legislation was enacted classifying South Africans into four racial groups, namely native, white, coloured and Indians. Residential areas were segregated according to these racial groups as was education, medical care, parks and other public facilities.102
There were numerous calls for the establishment of a non-racial convention, of which the Freedom Charter of the ANC was arguably one of the most famous. Nevertheless in 1961, when South Africa became a republic, it maintained its policy of racial segregation. In 1964 the Rivonia treason trial began in which ten leaders of the ANC, including Nelson Mandela, were tried and sentenced for 221 acts of sabotage designed to overthrow the apartheid system.103
During this time South African criminal law played a significant role in the implementation and upholding of the country’s apartheid policy. This was effected by the NP through the employment of the sanctions of imprisonment and fines to enforce their discriminatory laws. Under these draconian laws it became a crime if non-whites were not in possession of identity documents (passes),104 entered certain urban areas105 or used certain public facilities,106 occupied land in certain group areas107 or married or had a sexual relationship with white persons.108
102 Bekink Principles of South African Constitutional Law 95. 103 Bekink Principles of South African Constitutional Law 101-102.
104 See the Natives (Abolition of Passes and Co-ordination of Documents) Act 67 of 1952. 105 See the Natives (Urban Areas) Consolidation Act 25 of 1945.
106 See the Reservation of Separate Amenities Act 49 of 1953.
107 See the Group Areas Act 41 of 1950 and the Group Areas Act 36 of 1966.
108 See the Immorality Act 5 of 1927 and the Prohibition of Mixed Marriages Act 55 of 1949. It
These penal provisions resulted in large numbers of blacks being imprisoned or fined, which in turn led to civil uprisings, protest actions and unrest, such as the Soweto riots of 16 June 1976, which lasted well into the late 1980s. In an attempt to control the uprising, opposition leaders were banned and imprisoned and various security measures were put in place. New security crimes such as sabotage, terrorism and subversion were created and the police and executive authority were granted excessive powers such as the right to an arrest without a warrant, detention without trial, house arrest and banning. Despite these measures the security laws were not successful in suppressing the resistance to apartheid. Civic disorder became endemic in black townships.109 Children participated alongside their parents and widespread school boycotts took place. In response government declared a state of emergency on 21 July 1985, affording them even wider powers. In terms of these emergency regulations approximately 20 000 persons, including more than 2 000 children under the age of sixteen, were arrested without a warrant and detained for varying periods of time. In some areas, in the absence of a proper police force, vigilante groups emerged whose presence exacerbated violence and disorder within the areas. Violence became a socially sanctioned mechanism for achieving change and resolving conflict.110 The slogans of the day mobilising violence were “people’s war” and “ungovernable”. During this time children in particular suffered violence, trauma, abuse and other forms of hardship, such as the loss of a parent or parents. It is estimated that between 1991 and 1994 nearly 50 000 children were displaced, 2 000 physically traumatised and more than 7 000 abandoned as a result of intra- community violence.111
109 Burchell in Burchell & Milton Principles of Criminal Law (2005) 36-39. See also Shaw Crime
and Policing in Post-apartheid South Africa: Transforming under Fire (2002) 1 ff.
110 South African Publication Association Johannesburg “Most political deaths occurred in the
run-up to 1994 election: HRC” 27/05/1997 available at http:///www.justice.gov.za/ trc/media/1997/ 9705/s970527e.htm (accessed 12/07/2013).
111 Children in 2001 A Report on the State of the Nation’s Children National Programme of Action
With the implementation of a new Constitution in 1993,112 the position of non-whites improved slightly in that parliamentary franchise was extended to Coloured people and Indians. Black people were, however, still excluded.113
2.4.3.6 The 1994 constitutional era
Under both national and international pressure, success against apartheid was eventually achieved with the release of Nelson Mandela in 1990; the unbanning of the ANC; the adoption of the first democratic constitution, the Interim Constitution in 1993;114 the removal of racially based crimes from the statute book; the first non- racial election on 27 April 1994 and thereafter the Constitution of the Republic of South Africa, 1996.115
The introduction of a new constitutional framework transformed the entire legal order of South Africa and introduced a system in which all laws, including criminal law and procedure, have to pass the test for constitutionality. The Constitution with its comprehensive Bill of Rights, based on the principles of dignity, equality and human rights and freedoms, provides the catalyst for the re-evaluation of the principles of both statutory and common law on crime, including any law that may affect children.116
In this regard, the Constitution explicitly recognises that children are a vulnerable group, have specific and unique needs and must be afforded distinctive protection. In addition to the protection offered by the Bill of Rights to which children are entitled as ordinary inhabitants of South Africa, their interests have been given independent
112 Constitution of the Republic of South Africa Act 200 of 1993. 113 Bekink Principles of South African Constitutional Law 96. 114 Act 200 of 1993.
115 Bekink Principles of South African Constitutional Law 96-97. 116 See s 1 of the Constitution.
recognition in a “mini-charter created for children only” in section 28 thereof.117 In furtherance of these interests section 28(2) of the Constitution requires that in every matter concerning a child, a child’s best interests are of paramount importance. It therefore follows that the advent of the Constitution also affects the plight of child victims and child witnesses in that all laws within the criminal justice system affecting children and the way they give evidence will have to pass constitutional scrutiny.118
3
CONCLUSION
The present system of criminal law in South Africa is a truly mixed system that combines Roman-Dutch, German, English and unique South African elements. A brief overview of the historical development of South African criminal procedural law illustrates how this evolution materialised and reveals the role each of these systems played in the development of our unique, present-day South African system. It also provides clarity as to why our present system is an accusatorial system and not an inquisitorial one and explains why, unlike the English system, we have done away with the jury system. The effects of the accusatorial system on child witnesses will be discussed in greater detail in chapter 3.
A historical overview of our criminal justice system also illustrates a significant evolution in the role of child witnesses within the criminal justice system from a system such as the Germanic law where the mere accusation by a free man was enough to create a suspicion against an accused (without the involvement of any witnesses)119 to the present-day system that acknowledges the significance of child witnesses in the criminal justice system.120
117 Bekink & Brand “Constitutional protection of children” in Davel (ed) Introduction to Child Law
in South Africa (2001) 173.
118 The Constitution and its influence on other important Acts such as the Criminal Procedure Act
of 1977 and the Children’s Act 38 of 2005 will be discussed in detail later. See also paras 2.1 & 2.2 of ch 4 below.
119 Wessels The History of the Roman-Dutch Law 425.
120 See for example DPP v Minister of Justice and Constitutional Development 2009 (2) SACR
Regrettably, history shows that the increase in children’s involvement in the judicial system was coupled with some injustices. The competency requirement made it impossible for some, especially young children, to give evidence and the hearsay rule made it impossible for adults to give testimony on their behalf, regarding what the child had said to them. Even if the children were old enough to be deemed competent witnesses they were treated with severe scepticism.121 If they were allowed to testify, a collection of sub-rules referred to by Spencer as the “adversarial package”122 made it extremely difficult for them to do so. This adversarial package of traditional rules required of them to tell their tale in open court which was an alien environment in which the key figures were often only white men and they were in the physical presence of the accused (of whom they were usually afraid). They were then subjected to an adversarial cross-examination by someone whose agenda was to discredit them by persuading the court that their account was mistaken, incomplete or a lie. Throughout all of this they had to remain in attendance unless excused by the court.123
In this regard the present system is welcomed in that it recognises children’s vulnerabilities and proposes to afford child witnesses and child victims protection. It still has some shortcomings and imperfections, however, and faces huge systemic challenges.124 These shortcomings and challenges will be discussed in more detail later in this thesis.
121 R v Manda 1951 (3) SA 158 (A) at 163.
122 Spencer “Introduction” in Spencer & Lamb (eds) Children and Cross-examination: Time to
Change the Rules? (2012) 1.
123 R v Sideropoulos 1910 CPD 15; R v De Beer 1933 NPD 30 & R v R 1935 NPD 582.
124 See S v Mokoena; S v Phaswane 2008 (2) SACR 216 (T) at paras [87]-[92] & Centre for Child
Law Justice for Child Victims and Witnesses of Crime 7. See also Department of Justice and Correctional Development Report on the Re-establishment of Sexual Offences Courts (2013).
CHAPTER 3
The accusatorial system in South Africa and its effect on child
witnesses and child victims within the system
It has been suggested that the early roots of the present accusatorial (adversarial) trial system can be traced to trial by battle:1 physical confrontation gradually
developed into verbal confrontation.2
To-day instead of fighting with lethal weapons, we use legal arguments. Where combatants formerly met face to face, they now have surrogates–attorneys who fight for them. The judge acts as referee, theoretically protecting the contenders against foul blows. The jury decides which “side” fought the better fight. But fight it is and the object is to win, not necessarily to reveal the truth.3
1
INTRODUCTION
Most countries in the world primarily use one of the two criminal justice models of procedure: the accusatorial (or adversarial) model or the inquisitorial model. This classification is based on the history and evolution of particular systems.4 Traditionally the English and American countries, or common law world, are seen as examples of the former whereas the latter can be found on the European continent (e.g. the French or German systems) or in civil law countries. The South
1 Re “Oral v written evidence: the myth of the impassive witness” 1983 Australian LJ; Van der
Merwe “An introduction to the history and theory of the law of evidence” in Schwikkard & Van der Merwe Principles of Evidence 3 ed (2009) 1 3 1.
2 Van der Merwe “Die evolusie van die mondelingse karakter en uitsluitingsreëls van die
Engelse gemene bewysreg” 1991 Stell LR 281 at 290.
3 Dressler as quoted by Brouwer “Inquisitorial and adversary procedures – a comparative
analysis” 1981 Australian LJ 207.
African system belongs to the Anglo-American or accusatorial “family”. It should, however, be emphasised that no civilised country today follows a purely accusatorial or inquisitorial system, but rather a mixed system with a predisposition towards one of the two systems.5 Both systems endeavour to discover the truth and to accomplish this ideal in a fair manner. The way in which this is effected differs, however, one of the main differences being the role the judicial officer plays in the proceedings.6
In an accusatorial system a criminal trial consists of two opposing parties placing evidence before a judge, who plays a much more neutral or passive role than that of his or her inquisitorial counterpart. While the inquisitorial system has been depicted as judge-centred the accusatorial system has been described as party- driven7 or party-centred with each party presenting his or her case to the judge.8 The judge acts as an umpire and, after having heard the examination and cross- examination of the parties to the case, adjudicates upon the matter in the light of the evidence placed before him or her by the parties. Great emphasis is placed on the spoken word and evidence is mainly produced orally.9
The accusatorial system requires the accuser to present persuasive evidence of the accused’s guilt beyond reasonable doubt.10 This is due to the underlying assumption of the accusatorial model, namely the accused’s presumption of innocence. The best way to discover the truth in terms of this model is by allowing the parties themselves to present their evidence in a process which guarantees the use of direct
5 Snyman “The accusatorial and inquisitorial approaches to criminal procedure: some points of
comparison between the South African and continental systems” 1975 CILSA 101 at 102; Roodt “A historical perspective on the accusatorial and inquisitorial systems” 2004 Fundamina
137 at 138.
6 Snyman 1975 CILSA 103; Steytler “Making South African criminal procedure more
inquisitorial” 2001 Law, Democracy & Development 1 at 2; Roodt 2004 Fundamina 137.
7 Department of Justice and Constitutional Development Simplification of the Criminal
Procedure Project 73 (2001) 8; Steytler 2001 Law, Democracy & Development 2.
8 Müller & Hollely Introducing the Child Witness (2000) at 4.
9 Joubert (ed) Criminal Procedure Handbook 11 ed (2014) 298; Goldstein “Reflections on two
models: inquisitorial themes in American criminal procedure.” 1974 Stanford LR 1009 at 1017. It should, however, be noted that affidavits or certificates may be submitted as proof of certain facts. See also ss 212-215 of the Criminal Procedure Act 51 of 1977 (hereinafter the Criminal Procedure Act).
10 Burchell South African Criminal Law and Procedure Vol I: General Principles of Criminal Law
confrontation and cross-examination.11 This explains both the emphasis on “orality” and the reason why the adversarial trial model can to some extent allow the relative inactivity of the adjudicator.12 In sum the foundational assumption of the accusatorial system is the belief that partisan advocacy, coupled with equality of arms, is the best means of placing the neutral adjudicator in a position to determine the truth.13
In contrast, the inquisitorial model is regarded as a quasi-scientific or proactive search for the truth rather than a dispute. The judge is seen as the master of the proceedings and plays a much more active role in collecting and analysing facts.14 The judge decides whether there are sufficient grounds for instituting a prosecution, determines which witnesses to call and elicits the evidence by questioning the witnesses. An open system of evidence is followed that places little emphasis on oral presentation of evidence or cross-examination. Written evidence plays an integral part in the trial and all relevant evidence may be considered by the judge. The process becomes an inquest in which the judge attempts to establish the truth by integrating the arguments and evidence of the prosecution and defence. It has therefore been said that “because of his wide powers, the continental judge searches for the material truth, whereas the judge in the accusatorial systems is merely bound to search for the formal truth, because he merely relies upon the information placed before him by the parties”.15 The fundamental assumption underlying the inquisitorial system, in contrast to the accusatorial system, is the belief that the State is the powerful guarantor of the public interest and is best
11 Department of Justice and Constitutional Development Simplification of the Criminal
Procedure Project 73 (2001) 9; Van der Merwe in Schwikkard & Van der Merwe Principles of Evidence 1 5 2.
12 Van der Merwe in Schwikkard & Van der Merwe Principles of Evidence 1 5 2; Roodt 2004
Fundamina 139.
13 Joubert (ed) Criminal Procedure Handbook 22; Steytler 2001 Law, Democracy & Development
2; Roodt 2004 Fundamina 139.
14 Joubert (ed) Criminal Procedure Handbook 22; Snyman 1975 CILSA 103; Du Plessis “An
inquisitorial system in practice – visit to German criminal courts” 1988 SALJ 305 at 306-307.