New laws in S.A. "whittle away individual rights"

Press, 31 August 1977, Page 24

New laws in S.A. "whittle away individual rights"

Two contentious pieces of legislation which came into operation this month, will have far-reaching consequences for the future administration of law in South Africa. The first, the new Criminal Procedure Bill, will effectively replace the British-style "innocent until proved guilty” system of criminal justice with the Continental inquisitorial system — but without the checks and balances which European countries have developed. The second, the Lower Courts Amendent Act, vests considerable new powers in regional courts, providing magistrates with the jurisdiction to hear terrorism and sabotage cases. This law will greatly increase the scope of the Terrorism Act which is already widely used by the authorities to stifle South Africa’s more militant political opponents. Taken together, the two new laws will, in the words of Mr David Dalling, an Opposition M.P., have “serjous implications” and will "further whittle away the rights of the individual in our judicial procedure.” The new laws came under strong criticism when they were introduced in Parliament earlier this year. The Opposition saw them as reinforcing the increasingly authoritarian drift by the Government. However, they received relatively little exposure in the newspapers: they were preoccupied with the Press Bill, introduced at the same time. The Criminal Procedure Act replaces an earlier act

of the same name which had been in operation since 1955, and is the nearest document South Africa has to a charter on human rights. Mr James Kruger, the Minister of Justice, describes the 345-clause bill as a “milestone in South Africa’s legal history.” He says that its purpose is to streamline court procedure and thereby save time and money. However, Mr Harry Pitman, the Progressive Reform Party spokesman on justice, argues that it is "calculated to make inroads into what has been the basic protection of an accused person.” The most contentious clause is No. 115 which establishes a system of mandatory questioning of an accused person by a judicial officer immediately after he has pleaded, but before evidence is led. This is regarded in legal circles as a move away from the British accusatorial system, in which the judicial officer adopts a neutral role, towards the Continental- inquisitorial system, which involves a pre-trial interrogation by the judge or magistrate. Attacking this change in the basis of criminal law, Mr Pitman claims that the whole principle of selfincrimination is foreign to the South African legal system, and that it appears to stem from a desire to obtain quick admissions of guilt from the accused. He is particularly concerned about the effect the law will have on illiterate and ignorant Africans who often face trial without legal representation and

might easily incriminate themselves in pre-trial interrogations. Under the Lower Courts Amendment Act, the power of regional courts will be more than trebled, from a fine of $1530 or three years* imprisonment to' a maximum fine of $lO,lOO or 10 years’ imprisonment. Magistrates will now be empowered to hear terrorism and sabotage cases in which sentences do not exceed 10 years’ imprisonment. More serious cases will be referred to the Supreme Court which, until now, has dealt with all cases involving security legislation.

The Government maintains that the new bill has been introduced to relieve pressure on the higher courts. However, Mr Dalling claims that it could lead to a “sausage factory-

type of justice in our in ferior courts.”

The bill’s opponents argue that it is wrong to empower magistrates, who are State officials, to hear security trials which are nearly always related to political activities. These are matters, they sav, which should be left to judges who are independent of the State. As Professor John Dugard, Dean of the Law Faculty at Witwatersrand University, puts it: “This law cannot be welcomed as it empowers regional court magistrates to try crimes which are invariably of a political nature. However, people who are found guilty of terrorism or sabotage offences in a regional court retain an automatic right of appeal to the Supreme Court.” — Nicholas Ashford. Reuter.