THE RULE OF LAW

The Rule of Law must be restored in South Africa. Though South Africa cannot transform its criminal justice system overnight, the justice system must at all times be effective and open to all. To achieve this, the IFP believe in the need for an independent court system, separate provincial justice systems and a government with the political will to achieve these goals.

An independent court system

The IFP strongly believe in the need for an independent court system, acting in terms of a legitimate body of criminal and civil law, and uncluttered by quasi-judicial bodies and special tribunals. This system must operate in terms of the doctrine of the separation of powers, with checks and balances among the three branches of government. The courts have the duty to interpret government policy and the scope of the Bill of Rights, but it should not be their function to make law.

Provincial justice systems

Each province should have its own department of justice, courts and prosecution machinery. In addition, each province should also develop its own body of substantive law, with every province enjoying equal status. Provinces should exercise judicial functions in all areas in which they govern. In each province, where such do not already exist, a single division of the High Court, whose jurisdiction will correspond with provincial boundaries, should be established. All necessary administrative and professional support (Master, State Attorney, Registrar and Attorney-General) should be decentralised. Provincial constitutional courts should determine issues of constitutionality in the provinces, as is universal practice in other federations.

Government’s political will

A justice system such as that described above requires a government with the political will to drive a legal system which is dynamic, transparent, accountable, efficient, manned with competent professionals, flexible enough to accommodate to new contingencies and focused on statute law.

With regard to the existing judicial system, the IFP takes the following positions:

Provincial competence

The IFP opposes the establishment of the post of National Director of Public Prosecutions. The Provincial Attorneys General should be charged with the administration of justice in their areas. In addition, the IFP does not support the creation of a super-ministry to fight crime. It sees merit in maintaining and strengthening the existing specialised provincial Ministries and promoting co-operation among them.

Traditional institutions

The IFP acknowledges the role played by traditional institutions in the preservation of law and will fully comply with section 211 and 212 of the Constitution.

The adversarial criminal justice system

The IFP supports the continued use of the traditional adversarial criminal justice system.

Plea-bargaining

The IFP opposes plea-bargaining as it does not promote an effective criminal justice system, but de-criminalises transgressions of criminal law and may result in the punishment of the innocent.

Role of lay assessors

The role of lay assessors should be limited to advising court officials where appropriate.

Bail law

The present bail law is adequate for the requirements of our criminal justice system. Although the granting of bail has become notorious because the laws are ill-enforced, a harsher bail law would infringe on the liberty of the citizen who is presumed innocent until proven guilty in our law.

Law enforcement

All laws should be enforced. Where laws cannot be enforced, they should be removed. ‘Dead’ law should be eliminated. No new law should be passed without ministerial certification regarding its enforceability, the availability of resources to ensure enforceability, and the cost effectiveness of doing so.

Legal personnel

Manpower shortages must be eliminated, competent prosecutors must be appointed and their services retained. A professional staffing policy encompassing the provision of training, bursaries and monitoring must be established urgently in all fields of law enforcement, even if this means establishing a separate learning institute to maintain uniformity of national standards.

Serving rural areas

Rural communities must be better served by the establishment of a court to serve outlying areas. The legal aid system must be made to work for the poor.

The constitution

Doubts regarding the interpretation of the new constitution must be addressed.

Organised crime

Effective legislation must be passed to combat gangsterism and racketeering. The IFP will not squander scarce resources on prosecuting the minions who serve powerful gang leaders, and will not hesitate to investigate and prosecute the leaders themselves.

Judicial commissions

Quasi-judicial commissions which do not serve the cause of democracy or are not cost effective should be disbanded.

Sentencing

Tougher sentencing is needed and, where appropriate, corporal punishment for juveniles should replace stifling incarceration. Support for the death sentence should be tested in a referendum. As a deterrent, and wherever practicable, victims should be compensated for measurable damages by the perpetrators of crimes towards them. Community service should play a greater part in sentencing for minor offences.