Presentation by Judge Azhar Cachalia to the  second Symposium on Justice, October 28 2010:

I wish to thank the Foundation for organising this discussion on the Judiciary and the Criminal Justice System. In the short time available to me I thought it apposite to approach my task against the background of my own experiences with Criminal Justice Reform, first in the Department of Safety and Security, secondly, as a judge in a trial court and of appeal, and from the perspective of civil society where I have had some involvement through the Open Society Foundation and the Criminal Justice and Crime Prevention Centre. I currently serve on the Board of the Centre as its Chairman.

Let me start with policing. Here it would be useful to take a step back very briefly. The task given to me by the government in 1996, when I was appointed Secretary for Safety and Security, was to establish a secretariat for safety and security which would be responsible for developing policing policy, co-ordinate initiatives across government departments to ensure policy integration and also to establish an Independent Complaints Directorate whose function would be to investigate complaints from the public against the police in relation to police misconduct.

Among the key policy shifts was a move away from the militarised structure that characterised apartheid policing. There were two reasons for this: First, it was neither efficient nor effective because it was not responsive to the community's security concerns; and secondly, because it bred an authoritarian culture which gave rise to the police mistreating the community. Related to this was pressure to make the institution demographically more representative.

Henceforth our mandate was to focus on safety and security, not law and order. Thus police ranks were changed from military ones to civilian ones and community policing was introduced. A national police commissioner, who was an experienced police officer, was appointed. An Executive Director was appointed to the newly created Independent Complaints Directorate. There would also be renewed emphasis on improving the skills of the detective services so that detection and investigation of crime improved.

In this regard - and we were not starting with a clean slate - we thought it appropriate to build on some of the very good detective skills that we already had and benchmark these against detective practice and techniques in other democratic societies. New public order policing techniques were introduced to oversee public demonstrations rather than break them up.

But we realised that this would not be enough because it was the Criminal Justice System as a whole and not just the police that needed reform. We therefore worked with the departments of Justice and Correctional Services to remove blockages across these departments. This involved analysing why there were delays in processing cases through the system.

These results showed that there were too many awaiting trial prisoners, most of whom should not have been denied bail. The Department of Justice had an antiquated information management system. A decision was therefore made to remove these obstacles by introducing a project which we called the Integrated Justice System. I understand it is a system which is still being worked on, 15 years later.

And because there was a great clamour against a rising tide of crime, the bail laws were tightened and minimum sentence legislation introduced for certain categories of serious offences. And to give effect to the Constitutional requirement for an independent professional prosecuting service, the office of the National Director of Public Prosecutions was created.

There was one other very important policy development which was the adoption of the National Crime Prevention Strategy with its emphasis on crime prevention rather than on crime combating. Its need arose from the realisation that the police could not, by themselves, tackle the causes of crime -a fact only too well known among crime specialists.

A very well known British criminologist once emphasised the point by saying that trying to get the police to solve crime is like treating a brain tumour with a disprin. There are many examples of how crime prevention works but I will give one quick example. We found that when we patrolled, in and around the proximity of schools, there was a very high instance of crime even during school hours, we found that many of the learners were just not attending school. There were no security fences around the perimeter of the school and often the teachers and the principals were not performing their duties properly.

Now that typically is not a policing issue. That should be a Department of Education issue. Are your teachers managing, is your principal managing his or her school, are there enough security arrangements around the perimeter of the school? Those are the sorts of questions that are appropriate for a Department of Education or a community policing forum to address rather than the Police.

In broad brush strokes, this was the approach that was adopted more than a decade ago. I am not familiar with all the new initiatives of the current government and so my contribution on this aspect can therefore only be impressionistic. I will concentrate on some of the problem areas which I think government can improve on, some of which Adv. Simelane has already alluded to.

First, in the policing area, the re-militarisation of the police, I think, is a regressive step. It is premised on the assumption that this will inspire the police to be more disciplined and allow them to regain the confidence of the community. This is just nonsense: these assumptions are not only wrong but dangerous, and they go against the trend in modern policing all over the world.

As Adv Simelane has indicated, significant numbers of the police have inadequate skills, are armed and therefore dangerous. Giving them a military rank is only likely to compound the problem. It is very clear from what we see in the courts that many cases are poorly investigated. Statements are taken from suspects and witnesses by police officers who are functionally illiterate. How do you solve this problem by giving the police military titles?

The numbers of deaths resulting from police action and cases that point to police frequently resorting to violence, and even, I might add, torture, will increase not decrease with a militarised policing establishment supported, of course, by incendiary statements made by those who exercise political responsibility for the policing function.

Steps must also be taken to counter the very serious perception that the police and prosecuting authority are mere instruments of the governing party or factions of the party, and those decisions, regarding the investigation and prosecution of powerful individuals in this society, are influenced by political considerations.

Some of these cases are making their way through the courts and it is better that I say no more about them. But it does seem to me that the assertion, by some, that appointments are being made to senior positions in some of these departments of persons who neither have the experience nor skill to perform these difficult tasks, is not without merit.

Court delays in prosecuting criminal cases are just unacceptable. I was going to give a few examples of that but I think given the time constraints the time may better be used in discussion later on.

Let me conclude by dealing with one other problem and that is the introduction of an increasingly punitive regime. I do not think that is the answer either. People who engage in serious criminality do so because they calculate that they will not be arrested or successfully prosecuted, not because they fear long sentences -a point our Constitutional Court has emphasised.

When the minimum sentencing regime was introduced more than a decade ago, it was meant to be a short-term intervention to arrest what was then perceived to be a situation where crime was out of control. When it was first introduced it was introduced for one year then it was increased for another two years, then it was increased for another two years and now it is automatically being rubber stamped.

Since then, the courts have been dishing out disproportionately harsh sentences which prisoners serve often in appallingly overcrowded prisons with little chance of rehabilitation. I do not think that this is what was envisaged, nor do I think incidentally that this model is sustainable. You cannot lock up increasing numbers of people. It is not cost effective, but more than anything else, you are simply delaying solving the problem. So I think the whole question of sentencing policy is an area that unfortunately has to be re-looked at again.

Azhar Cachalia is a judge of the Supreme Court of Appeal. He served as Secretary for Safety and Security between 1996 and 1999. This presentation was published in the Helen Suzman Foundation's "Delivering Justice: The Judiciary and the Criminal Justice System" Symposium Series Part Two, March 2011

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