By Lehlohonolo Lehana.
Deputy Justice and Constitutional Development Minister, Andries Nel has initiated a review of the Criminal Procedure Act (CPA) to address its systemic challenges.
The review process conducted by the South African Land Reform Commission (SALRC) began in 2021.
It aims to align the CPA with the country’s constitution to ensure that the criminal justice system is fair and effective.
An advisory committee was appointed in November 2023 to provide guidance and support on four discussion papers in this regard.
Nel said the criminal justice system must change, and this includes the CPA.
He said former Justice and Correctional Services Minister Ronald Lamola in 2021 asked the SALRC to review the criminal justice system. A review of the CPA is a sub-project of that.
Nel spoke at a media briefing to release four discussion papers by the SALRC, which are now open for public comment and can be accessed here.
The discussion paper dealing with non-trial resolutions for corruption cases notes that the State Capture Commission recommended the introduction of deferred prosecution agreements (DPAs) as an alternative to criminal prosecution for companies implicated in economic crimes.
This entails an agreement between prosecutors and the accused corporation in which the corporation admits facts from which criminal liability could be inferred and agrees to engage in specific conduct in the near future. In exchange, the prosecutor defers the criminal charges, provided that the corporation adheres to the terms and conditions of the agreement. If the corporation complies with the DPA, the charges are dropped, but if it fails to comply, the prosecution will proceed.
Non-trial resolutions (NTR) would save prosecuting authorities the time and expense of a full trial, which can take up to 10 years in complex corruption cases, and “give South Africa a seat at the table where law enforcement agencies from other countries resolve corruption charges with a multinational company – and a share in the penalties”, according to a statement from the SALRC.
“They can save companies from bankruptcy that is often a consequence of a finding of guilt – saving jobs and share value. Not all companies would be eligible for an NTR – only those who demonstrate the capacity for reform.”
There is also a discussion paper on alternative dispute resolution (ADR) mechanisms, which “propose law reform in employing pre-trial ADR to redirect criminal cases away from the courts by submitting them to processes capable of being finalised expeditiously in support of abbreviated and cost-effective processes”.
The discussion paper dealing with the arrest dispensation recommends amendment section 49 of the CPA to make it clear that an arrestor may use deadly force only if the suspect poses an immediate threat to the life of the arrestor or any other person or an immediate threat of grievous bodily harm to the arrestor or any other person.
Among the recommendations on the bail dispensation is that provisions must be included in the CPA “expressly stipulating how the victims of crime generally should be treated by organs of state operating in the criminal justice system and providing remedies for infractions of these injunctions”.
“In relation to bail, the Commission has proposed that the victim must be informed of bail proceedings and outcome thereof and that his or her views, particularly about his or her need for protection, must be solicited and considered.
“Importantly, the Commission has recommended that these rights must be vindicated in court if grievances by the victim about the protection, promotion and enforcement of his or her rights have not been resolved satisfactorily by the organ of state concerned,” reads the statement on the bail discussion paper.
Nel emphasised that the recommendations are only to stimulate debate and they do not represent government policy or even intended government policy, he said.
The closing date for submissions on the proposal is 31 March 2025 and could be sent to Reform@justice.gov.za.