‘Cases reflect class justice; if you are poor and black the system is biased against you’

The Oscar Pistorius murder trial has portrayed South Africa's legal system as efficient and one that protects the individual's human rights, but this is not the reality for many other criminals accused.

Ruth Hopkins of the Wits Justice Project, a Johannesburg-based organisation that researches South Africa's legal system, believes the paralympic athlete's trial does not reflect the justice meted out to many ordinary South Africans, who are far from equal before the law.

“South Africa has quite a robust and progressive legal system on paper, but in practice there are a lot of abuses. What is often reflected in court cases is the ugly face of class justice, whereby if you are poor and black the system is biased against you,” she says.

Poor blacks, in particular, are subjected to wrongful arrests and convictions, lengthy delays in legal proceedings, and poor legal representation from an overstretched legal aid board, says Hopkins.

“We are awash with cases where you have presumed-innocent suspects on remand for many years awaiting trial. A lot of magistrates and judges are not well informed and are biased against the poor, who in turn do not know their rights and have no idea how to navigate the legal system,” she says.

Minister of correctional services Sibusiso Ndebele said last year that South Africa was ranked number one in Africa and ninth in the world in terms of the size of its prison population, which stands at around 160,000 inmates. And of these, about 30 per cent were awaiting trial.

Legal Aid South Africa estimates that about 10,000 people have been awarded bail by the courts but cannot afford it, and so remain confined in a notoriously dangerous and overcrowded prison system.

Cape Town legal aid centre’s principal Cobus Esterhuizen says the length of time it takes to get a bail hearing and trial date, and the inability of clients to raise bail, are the biggest problems facing the system.

Efforts are being made by authorities to tackle these issues, he says, but because of the large numbers of people in the system, the courts are finding it difficult to reduce the backlog of accused people in prison for no good reason.

“To be incarcerated and qualify for bail, that is a big issue. We have many people who get granted bail on amounts as low as 50 rand (€3.50) who can’t afford it. So we argue they are there only because they are poor,” says Esterhuizen.

On why it takes so long to get a hearing date, he says there are many reasons a scheduled case does not go ahead, but at the heart of it is the sheer number of people the system has to handle.

Elite legal professionals

“People pass away. Clients don’t arrive or judges don’t call their names. Witnesses who keep turning up for a case that doesn’t go ahead eventually stop coming. If a client gets bail today the first available date for a trial from now is at least 12 months.The [court] rolls are full because the system is trying to finish guys in custody,” he says. All role players blame each other for the situatifon, he adds.

But Pistorius and other high-profile murder accused, like British national Shrien Dewani, have avoided such dysfunction because they can afford elite legal professionals, and judges overseeing such cases are aware of a watching world and proceed accordingly.

In addition, Hopkins says, people charged with a serious offence such as premeditated murder – a schedule 6 offence – as Pistorius was, often do not get the opportunity to prove the “exceptional circumstances” they need to get bail. However, the athlete received very lenient bail conditions that even allowed him to travel abroad for holidays.

Dewani too has received exceptional treatment within the South African legal system.

The man accused of orchestrating the murder of his wife while on honeymoon in Cape Town in 2010 was extradited to South Africa from the UK on a private jet with accompanying medical staff paid for by the South African taxpayer.

Both Pistorius and Dewani – the latter will stand trial next month – had immediate access to medical facility places when referred for psychiatric observation by the courts, even though there was an extensive waiting list.

Esterhuizen says there are about 130 accused waiting for beds at Valkenberg Hospital in Cape Town, where Dewani has been held since June.

“We find that the capacity to do these types of observations for a 30-day period is an issue in terms of availability of beds,” he says, adding that the legal aid board has questioned the fairness of allowing individuals such as Dewani to jump the queue.

Hopkins believes that to improve the South African legal system the authorities should begin at the first point in the chain where the problems occur: the police.

“The rot starts with the police who operate as thugs a lot of the time, and use apartheid-era tactics that are very aggressive and in many instances illegal. We also deal with a lot of torture cases.”

Police need better training and oversight bodies need to be strengthened, she says.

A number of initiatives have been introduced by the authorities to tackle court delays and backlogs.

The recently introduced Section 49 G of the Correctional Services Act states “the period of incarceration of a remand detainee must not exceed two years from the initial date of admission”, without a formal inquiry in to why they remain in jail.

In addition, there is a new programme whereby accused who cannot afford bail of 1,000 rand (€72) or less are freed and monitored by the correctional services until their trial date.

However, places on the initiative are limited.