Rights of Accused Persons and Convicted Offenders

CHAPTER OVERVIEW

The state-sponsored provision of free legal aid to accused persons who cannot afford their own legal representation was supported by just over half of the respondents. Black respondents were least supportive of free legal aid, and white respondents the most.

Around three-quarters of respondents thought it was important that the criminal justice system respected the constitutional rights of accused persons. However, black respondents were more than three times as likely to say that accused persons’ rights were unimportant compared to their white and coloured counterparts. Black respondents, however, were the most concerned that the criminal justice process should ensure that no innocent person was convicted of a crime even if it meant that some guilty people went free.

Most respondents felt that it was important that convicted offenders were treated fairly by the criminal justice system. There was overwhelming support among the respondents for forced manual labour for prisoners who had committed serious crimes. Respondents were equally divided on the question whether convicted offenders should lose their right to vote.

Almost two-thirds of respondents thought that juveniles should be treated differently and more benignly by the criminal justice system. This view was especially strong among rural and black respondents. About half of the respondents thought that caning for juveniles should be reintroduced as a punishment in law. Rural respondents were most in favour of a reintroduction of corporal punishment for juvenile offenders.

Respondents thought that free education is the most important privilege that should be afforded to prisoners. Only a minority of respondents thought that prisoners should have a right to free medical treatment and access to books. 

Slightly over half of all respondents (57%) thought that it was important for the criminal justice system to provide free legal assistance for accused persons who could not afford a lawyer. A significant minority (27%) thought it unimportant, while the remainder (15%) were indifferent. The proportion of respondents who thought that free legal assistance was important, was not influenced by respondents’ area of residence. However, more rural respondents believed that the provision of free legal aid was not important (42%), than their counterparts living in small towns (27%) and urban areas (24%).

Half of black respondents held the view that free legal aid for indigent accused was important, compared to 59% and 66% of coloured and white respondents respectively. Respondents earning less than R1 000 a month were least likely to say that free legal assistance should be given to the poor (46%). Respondents earning no income were most likely to attach importance to free legal aid (63%), followed by the highest income group comprising individuals earning more than R5 000 a month (59%).

CONSTITUTIONAL RIGHTS

Almost three-quarters of respondents thought that it was important that the criminal justice system respected the constitutional rights of accused persons, such as the right to remain silent, the right to bail, and the right to appear in court within 48 hours of being arrested. Twelve per cent of respondents thought that it was unimportant, with a further 12% being indifferent. Only one out of ten urban and small town respondents thought that such rights were unimportant, but almost a third (28%) of rural respondents thought so (table 4). Moreover, while 25% of black respondents stated that it was not important that the criminal justice system respected the constitutional rights of accused persons, only 6% and less than 1% of white and coloured respondents, respectively, expressed a similar opinion.

In terms of South Africa’s constitution various rights are accorded to arrested, detained and accused persons.1 For example: Everyone who is detained, including every sentenced prisoner, has the right to have a legal practitioner assigned to him or her by the state and at the state’s expense, if substantial injustice would otherwise result, and to be informed of this right promptly. Everyone who is arrested for allegedly committing an offence has the right to remain silent; to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest; and to be released from detention if the interests of justice permit, subject to reasonable conditions. Every accused person has a right to a fair trial, which includes the right to be presumed innocent.

Just under three-quarters of respondents thought that it was important that the criminal justice process should ensure that no innocent person was convicted of a crime, even if it meant that some guilty people would go free. Only 6% of respondents thought this was an unimportant attribute of the criminal justice system, while 17% of respondents were indifferent. Rural respondents were most likely to say that it was important that innocent people were not falsely convicted (88%), followed by urban and small town respondents (73% and 71%, respectively). Moreover, black respondents attached more importance to this aspect of the criminal justice process (78%), than coloured and white respondents (71% and 68%, respectively).

Focus group findings

White focus group participants in Port Elizabeth felt that accused persons should not lose any rights as they had not been convicted of any crime. Black focus group participants in the city felt that accused persons on trial for serious crimes should not be permitted to see their families. The right to be released on bail should also be denied to such accused persons.

Umtata focus group participants felt that accused persons’ rights should be determined by the type and seriousness of the crime they allegedly committed. For example, no bail should be granted to persons accused of rape. All accused, however, should have a right to an attorney. Focus group participants in Thabankulu stated that accused persons should have a right to bail but that the amount of bail money set by the courts should be so high that it would be difficult for an accused person to pay it.

Focus group participants all felt that accused persons should have some rights. Most respondents were not very specific about the rights accused persons should be accorded.

FAIR TREATMENT, VOTING RIGHTS AND MANUAL LABOUR

Almost three-quarters of respondents thought it was important that the criminal justice system treated convicted offenders fairly. Some 17% thought that it was not important, while 10% were indifferent. Rural respondents, however, were less convinced that convicted offenders deserved fair treatment with only 57% saying that they did (and a third that they did not). Almost all coloured respondents (95%) and the overwhelming majority of white respondents (86%) thought that it was important that convicted offenders were treated fairly, while just over half of black respondents thought so (53%). Moreover, while almost a third of black respondents (30%) thought it was unimportant whether convicted offenders were treated fairly, only a small minority of white (6%) and coloured respondents (3%) thought so.

Half of all respondents thought that convicted offenders should lose their right to vote. This view was held most strongly by rural respondents (57%), followed by urban (51%) and small town (47%) respondents. Moreover, white respondents were considerably more likely to advocate a no-vote policy for convicted offenders — with just over three-quarters doing so — than coloured (58%) and black (31%) respondents.

Four-fifths (80%) of respondents thought that prisoners who had committed serious crimes should be forced to do manual labour while in prison. Only 5% of respondents disagreed with such a proposal, and 16% were unsure. Urban respondents were most enthusiastic about compulsory manual labour for prisoners (90%), followed by respondents in small towns (75%) and rural areas (63%). White respondents were almost unanimously in favour of forced manual labour (93%). About three-quarters of black and coloured respondents expressed a similar view.

In terms of the Correctional Services Act of 1998, every sentenced prisoner must perform any labour which is related to any development programme or which is designed to foster habits of industry, unless a medical officer or psychologist certifies that the prisoner is physically or mentally unfit to perform such labour.2 Moreover, sufficient work must be provided as far as is practical to keep prisoners active for a normal working day, and a prisoner may be compelled to do such work. A sentenced prisoner may elect the type of work he prefers to perform, if such choice is practical and in accordance with an appropriate vocational programme. A prisoner, however, may never be instructed or compelled to work as a form of punishment or disciplinary measure.3

JUVENILE OFFENDERS

Almost two-thirds of respondents thought that juveniles (persons younger than 18 years) should be treated differently by the criminal justice system. This view was especially prevalent among rural respondents (75%), followed by respondents in small towns and urban areas (64% and 60%, respectively). Moreover, three-quarters of black respondents thought that juveniles should be treated differently, compared to about half of their white and coloured counterparts.

The most common reason why respondents felt that juveniles should be treated differently, was that young people were ignorant, they were easily influenced by others, and were susceptible to peer group pressure. That juveniles could be reformed and that they should be given a second chance were other reasons why they should be treated differently. Respondents who felt that juveniles should not be treated differently by the criminal justice system, argued that if juveniles committed the same crimes as adults, they should face the same consequences as adult offenders.

Just over half (51%) of the respondents thought that caning for juveniles should be reintroduced as a punishment in law, while 46% were opposed to this. There were considerable regional differences in respondents’ answers, however. While only 42% of urban respondents favoured a reintroduction of corporal punishment for juveniles, 54% of small town respondents and 68% of rural respondents favoured it.

White respondents were most enthusiastic about the reintroduction of caning for juvenile offenders (60% for versus 39% against). Black respondents were almost equally divided (48% for versus 47% against). Coloured respondents, however, were largely opposed to the reintroduction of corporal punishment (47% for versus 53% against).

A considerable majority (83%) of respondents thought that juveniles who committed violent and serious crimes should be detained in places of safety or juvenile detention centres, as opposed to prison with adult criminals. There were no significant differences in the responses given by the various categories of respondents. Rural and coloured respondents were slightly more inclined than the average to favour sending juveniles to places of safety rather than to prison.

According to the Correctional Services Act of 1998, prisoners who are children (i.e under the age of 18 years) must be kept separate from adult prisoners and in accommodation appropriate to their age.4 Every prisoner who is a child must be provided with social services, religious care, recreational programmes and psychological services. Moreover, every prisoner who is a child and is subject to compulsory education must attend and have access to such educational programmes while incarcerated.5

Respondents were asked to list those rights and privileges which should be afforded to convicted prisoners, provided that these would not be a threat to security (figure 12). Respondents from urban centres and small towns were similar in their suggestions: free education, followed by (in order of preference) free medical treatment, the provision of books, earning money from manual labour, and access to entertainment (such as television and radio). Rural respondents’ answers were similar, with the exception that they placed the provision of free education near the bottom of their list.

Focus group findings

In Port Elizabeth, white focus group participants felt that convicted prisoners should ‘lose all their rights except their basic human rights’. All agreed that prisoners should have no privileges such as television or sport. That is, prisoners should not have a normal social life. Black focus group participants thought that prisoners should not be able to watch television, but that they should have access to medical care. Coloured and Asian focus group participants in the city felt that a convicted criminal should have no rights.

Farmers in Graaff-Reinet argued that prisoners should have no more rights than basic human rights such as the right to food, a place to sleep and toilet facilities. No privileges should be given to convicted prisoners other than family visits as the children of prisoners should have the right to see their parent. Female black and coloured focus group participants in Graaff-Reinet thought that convicted prisoners had the right to be educated and to be taught new skills. However, they should not have the right to privileges such as access to television and sport.

White focus group participants in Grahamstown felt that prisoners had the right to medical care. This could lead to a situation, however, where a criminal received medical care from the state and the victim did not. Prisoners’ privileges should be controlled and earned. Coloured focus group participants in the town thought that prisoners had too many rights. Prisons were full during the winter as people wanted to be incarcerated in order to receive a hot meal and a warm bed. Prisoners should have only their basic needs met. Some felt that prisoners should have a right to watch television or to play sport. If such ‘entertainment’ rights were taken away, prisoners might find other more destructive ways to entertain themselves. Others argued that prisoners should have no privileges even if the boredom drove them insane.

Umtata focus group participants stated that prisoners had a right to life, but should have no right to watch television or read newspapers. Many unemployed people committed crimes to be sent to prison where they were assured of three meals a day, warm water, a bed and access to television. 

A high proportion of respondents expressed sympathy with vigilante behaviour and vigilante type crimes. Yet, a sizeable majority of respondents expressed the view that it was important that the constitutional rights of accused persons were protected, even if it meant that some guilty people would go free.

There appear to be inconsistencies in the views of some respondents. Some who condoned vigilante type behaviour (even if it resulted in violent and criminal behaviour) paradoxically thought it important that the criminal justice system does not convict anyone unfairly even if a few guilty people should go free as a result.

It is possible that respondents reacted more instinctively (in the case of some of the more descriptive case studies) and therefore more sympathetically towards vigilantes, than when they were confronted about constitutional rights to be upheld by the criminal justice system. It is also possible that some respondents judged the state and its organs more strictly than they did individuals such as vigilantes. Whatever the reason for respondents’ support for the protection of the constitutional rights of accused persons, their views are encouraging. It means that, notwithstanding the high levels of crime, there is still substantial support for many of the rights crime suspects enjoy by virtue of the country’s Bill of Rights.

Notes