CRIMINAL PROCEDURE LEGISLATIVE REFORM: SALRC INVESTIGATION UPDATE

CRIMINAL PROCEDURE LEGISLATIVE REFORM: SALRC INVESTIGATION UPDATE

• 03 January 2024
• Justice & Constitutional Development
• SA Legal Academy

On 13 December 2023, Justice & Correctional Services Minister Ronald Lamola issued a media statement announcing the appointment of an advisory committee on the South African Law Reform Commission’s (SALRC’s) ‘criminal procedure reform investigation’. Media reports at the time simply quoted the statement, providing no background information. This article attempts to close that gap.

Apparently under way for some time, the investigation entails a ‘comprehensive review’ of the Criminal Procedure Act, 1977, and ‘all other apartheid-era legislation … concern(ing) the conduct of criminal trials in the lower and superior courts’. It is expected to ‘culminate’ in new legislation, which will repeal and replace the outdated Act.

The statement makes no reference to the investigation’s commencement or any related documentation.

It has been customary for any SALRC review to include a public consultation process. With that in mind, as far as can be ascertained public participation in the Criminal Procedure Act review began in 2015 with the release of a discussion paper. According to a preamble to that paper (pages vii to xi), the investigation forms part of a broader review of all legislation administered by the Department of Justice & Constitutional Development – itself undertaken in the context of the SALRC’s Project 25 (a review of legislation administered by each national government department).

Given the large number of statutes falling under the Department of Justice & Constitutional Development, an ‘incremental approach’ was adopted. In that context, according to the discussion paper’s preamble, the broader review’s criminal procedure and evidence ‘cluster’ was left until its third phase. Presumably, that phase began in 2015 and is still in progress nearly nine years later.

This notwithstanding, the Minister’s statement refers to the investigation as:

• one of the SALRC’s ‘flagship projects’
• ‘one of the priorities of the sixth administration, enshrined in the 2019-2024 Medium Term Strategic Framework’, and
• considered ‘critical to government’s quest to creating an accessible, effective and modern criminal justice system that ensures (the) fair and just resolution of criminal infringements for accused persons and victims of crime alike’.

Interestingly, the 2019-2024 revised Medium Term Strategic Framework makes no mention of the Act’s impending replacement and repeal. Neither does it expressly refer to the SALRC or to plans for criminal justice legislative reform.

Instead, the document draws attention to the need for a ‘strengthened’, ‘modernised’ criminal justice system that is ‘efficient’, ‘effective’ and ‘well-functioning’. In that context, reference is made to an ‘integrated criminal justice strategy’ the implementation of which is prioritised in the Minister’s foreword to his department’s 2021-25 strategic plan. Apparently approved by Cabinet in March 2017, the ‘integrated criminal justice strategy’ itself has yet to be published.

The 2019-2024 medium term strategic framework also undertakes to table a ‘Criminal Procedure Amendment Bill’ in Parliament during 2022. No details of the Bill’s objectives are provided. However, a Criminal Procedure Amendment Bill introduced in 2021 has since been passed, enacted and commenced – remedying defects in the Act identified in the 2019 Centre for Child Law Constitutional Court judgment.

The 2015 discussion paper’s preamble (page ix) tends to suggest that its preparation may have been informed to some extent by the department’s response to an SALRC May 2001 report on an investigation into ‘the application of the Bill of Rights to criminal procedure, criminal law, the law of evidence and sentencing’.

Clarity is needed on:

• progress made in reviewing the Criminal Procedure Act, 1977
• the role of the recently appointed advisory committee
• its relationship with the SALRC investigation team, and
• how long the advisory committee has to facilitate the review’s completion and the preparation of a final report.

Please click the links below for more information:

• 13 December 2023 media statement
• 2015 discussion paper
• 2001 report
• 2019-2024 revised Medium Term Strategic Framework
• 2021-2025 strategic plan
• 2022 amendment Act

Published by SA Legal Academy Policy Watch

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