The silent reality: Racial discrimination in the Criminal lustice Process

the the way they


I. Introduction
During the course of 1980, the Centre for Applied Legal Studies at the U niversity of the Witwatersrand in Johannesburg, South Africa, conducted a court-record study of 770 criminal ca ses dealt with by the Witwatersrand Local Division of the Supreme Court over a two year per iod, starting in January 1978. The aim was to find out the correlation between a chosen set of variables and the outcome of the trials. These were the variables: the age, race and sex of the accused; the race and sex of the victim; the charge; the plea; legal representation; bail; length of the trial; expert evidence; type of punishment and appeal. The court-record method was chosen because court records serve to legitimize judicial decisions; secondly, documented details are an important means by wh ich the magis trates court communicates with the Supreme Court, thus enabling it to reconstruct the case at hand. The arbitrary choice of variables obviously limits the concIusiveness of the findings, but this does not, and should not, precIude one from pointing out significant correlations where they occur. This paper presents the major findings, which are analysed against the politico-Iegal fabric of the South African society.

Findings on Summary Trial Proceedings
Proceedings before the magistrate were conducted mostly in Afrikaans. Interpreters were present in every case. In all ca ses no assessors were present. Most of the proceedings were in terms of section 115 of the Criminal Procedure Act1 which provides for the discretionary questioning, by the magistrate, of an accused at his trial. Thus, 89,7 % of the accused pleaded >not guilty<. In almost all ca ses where there was legal representation, a plea of >not guilty< was entered. The incidence of the granting of the bail was significantly high er (42,40 %) for those who pleaded >not guilty< than for those who pleaded >guilty< (29,20 %). Significant, too is that 39,31 % of those who pleaded >not guilty< at the summary trial were finally acquitted in the Supreme Court, as opposed to 6,00 % who pleaded >guilty<. Only 22,42 % of the accused were legally represented at the summary trial. The percentage of whites legally represented was 70,80 %; coloureds 29,60 %; Indians 28,60 % and blacks 15, 10 %. A striking correlation was found between the incidence of legal representation and the granting of bai!: Where there was legal representation, bai! was granted in 74, 10 % of the cases, as opposed to 42,74 % of the cases where there was no legal representation. No correIation was found between the sex of the accused and the granting of bail. Nor was there any correlation between the sex of the victim and the granting of bai!. But a significant correlation emerged between the race of the accused and the incidence of the granting of bail. In the case of accused males, the granting of bail was highest for whites (72,06 %), followed by coloureds (6 1 ,97 %) and lowest for blacks (44,24 %). This discre pancy was noticeable, too, in the control for the race of the victim: Bail was refused in 66,67 % of the ca ses where the victim was white, 31,48 % of the ca ses where coloured and 48,44 % where black. This discrepancy was further noticeable in the control for both the race and the sex of the victim. Significant, too, is that the percentage of white males granted bai! was much high er (80,00 %) than the percentage of black males granted bail where the victim was a white male (34,62 %). Also, the percentage of black males gran ted bai! where the victim was a white female was much sm aller (34,62 %) than was the ca se where white males were charged with crimes against black females (80,00 %). Where black males were charged with crimes against black females, bail was granted in 54,76 % of the cases; and in the ca se of white males against white fe males it was 34,62 %. H was also found that the average bail money fixed was much high er where the victim was white than where the victim was of another race. In respect of the most common verdicts (murder with extenuating circumstances; assault with aggravating circumstances and culpable homicide) persons who were refused bail received much stiffer sentences than those gran ted bail.   percentage of cases wh ere the victim was a black f eoal e and b ail was granted. 33 out of a total of 58) The average period from the start of the summary trial to the end of the Supreme Court trial where the accused was refused bail and finally acquitted, was 243 days. Interesting is that no white person who was refused bai!, was finally acquitted.
In. Supreme Court Proceedings The study showed that 72,94 % of the accused had pro Deo legal representation; 25,23 % self retained counsel and 1,83 % were unassisted. Interpreters were present in all cases. Assessors were present only occasionally, though in 92,45 % of the ca ses where the death penalty was imposed.

In. (a) Expert Evidence
In general, it was hard to ascertain the incidence of ordinary witnesses at the trial. However, the summary trial record showed that blacks rarely had witnesses to call. In several ca ses, where they did have witnesses, they did not know how to lecate them. Expert evidence was led in 5,78 % of the ca ses and in only 1,89 % of the ca ses where the death penalty was imposed. There was no significant difference in the use of expert evidence by pro Deo counsel as opposed to self retained counsel. But a significant discrepancy was noticed in the incidence of expert evidence where the control was for the race and sex of the accused: Expert evidence was led in 26,74 % of the cases where the accused was a white male; 50,00 % white fern ale; 3,95 % coloured male; 2,48 % black male and in 2,56 % of the cases where the accused was a black fern ale.

III. (b) Verdict
No significant difference in the acquittal and the conviction rates between pro Deo and self retained counsul was established. Striking was the high conviction rate of white males (84,09 %) as opposed to black males (62,92 %). In the case of whites 74 were convicted as against an expected 57,3; and in the ca se of blacks it was 358 against an expected 370,3 (Signijicance = 0,0007). A significant discrepancy was found where the control was for the race and sex of the victim. As the table below shows, the conviction rate was much higher where the victim was white than where the victim was of another race.

In. (c) Sentence
The average length of prison sentences imposed was significantly shorter for females (19.80  average than aeeused with pro Deo representation. In 44,05 % of the eases where eounsel was self retained, the aeeused was senteneed to imprisonment without the option of a fi ne; in the ease of pro Deo counsel, it was 55,02 %. Also, where eounsel was self retained, in 21,67 % of the cases was the sentence wholly suspended, as eompared to 11,24 % of the cases where the defenee was pro Deo. But again, and in so far as the sentenee coneerned »Iength of imprisonment«, »portion suspended« and period over whieh suspended, it was found that in the eommon verdiet, »guilty of eulpable homi· eide«, whites reeeived less severe penalties than other raees.

III. (d) Appeals
A total of 108 applications for leave to appeal were recorded; 84 from blacks, 9 from coloureds, 2 from Indians and 13 from whites. In several cases applications were still pending. However, leave to appeal was granted to 11 blacks, 1 coloured and 6 whites.

IV. Discussion
These findings show race to be an important variable in the dispensation of justice. This, it is submitted, is due to a combination of both subjective and objective determinable factors which can be traced back to the racially stratified nature of the South African society. The discussion below attempts to show how these factors influence the course and the outcome of the criminal justice process. As a starting point, the discussion focusses on the pre-trial, or system entry phase; more specifically, on the police in their relationship to the Apartheid society at large.

IV. (a) The Police
In South Africa the word )police< suggests one thing to whites, and something else to blacks. Whites perceive police as genuine )peace officers< who are there to protect peace-loving citizens by maintaining law and order. Indeed, this is the normal image of police in a civilized society. In South Africa, the positive perception of the police by whites is attributable to the fact that in their encounter with whites, police appear in standard gear and patrol in radio cars as is the ca se in Europe and in the United States, for example. Moreover, white metropolitan areas are patrolled mainly by white po licemen with whom the white public can identify. It is not unusual for a white person to go up to a policeman on patrol to ask for some kind of assistance not related to a complaint. The defender role ofthe police is furthermore enhanced by such television (to wh ich most whites have access) series, as Task Force, wh ich portray the heroic role of the police in the routing of crime. Blacks, on the other hand, have a contrasting view of police. This sterns from the encounter situation: Police patrolling black residential areas appear in paramilitary outfit and are often accom panied by German wolf hounds; they appear in batallions and patrol in vans or huge )pick up< lorries, colloquially known amongst blacks as )kwela!< (jump in!). The sight of these caged vehic1es wh ich are normally filled with arrested people, is a terrifying experience, let alone for children on which it has an immense psychological impact. Township mothers are able to bring to a sudden stop the wail of a child by merely pointing to a passing police vehic1e or by threatening to call a policeman. Indeed, the negative and scarry image of the police is eloquently portrayed in the works of South Africa's leading black novelists and playwrights.

IV. (b) Discriminatory Treatment by Police
In South Africa, blacks are subjected to more stringent police control than whites. This, however, is not a peculiarly South African phenomenon. Empirical studies elsewhere have shown that underprivileged social groups are more closely monitored by police than the privileged groups.3 This selective attention is, per se, discriminatory since it exposes one group to a high er risk of arrest and prosecution than another. In South Africa, the degree of discrimination is exacerbated by the fact that a great deal of police activity is directed at controlling behaviour in respect ofwhich only persons with specific colour are subject. The fact that police activity is directed more at controlling black people for crime in respect of which there are no human victims and no human complainants, than at controlling white collar economic delinquency of the >Muldergate< variety, which harms the society at large and which is usually discovered only after damage is done, is discriminatory. to extract confessions in order to substantiate, or to ground a charge -which one suspects is the case -the Criminal Procedure Act offers no relief. According to sec. 217 (l) the mere production of a confession made in writing before a magistrate, is admissible as evidence against the accused and is presumed to have been made freely and voluntarily unless the contrary can be proved. The onus is on the accused.
Black grievances from which white politicians are wo nt to shy away, are now being settled by police with paramilitary methods. The official designation of areas of social unrest as Hoperational areas«, and of extra parliamentary opposition as Hsubversive elements«, automatically arms the police with an unfettered discretion in their dealings with blacks. Because this type of discretion is not open to public scrutiny8 -evil though it is -the danger of it being employed indiscriminately is ever present. The increased militarization of the police in the wake of the Soweto school unrest, has already blurred the line between police action and military operation. Evidence of this is the statement by the Commissioner of Police, who warned that police would Hshoot to kill«.9 The result is that the cherished division of powers between the executive and the judiciary, has been reduced to an absurdity. Furthermore, the principles of state security legislation are implemented with the help of procedural regulations wh ich de facto delegate to the security police the power to decide who shall stand trial, if at all. The pre-trial interrogation of detainees by police under the )drastic process< is not subject to judicial control. The result is that where the trial does take place, the accused, their lawyers and the prosecutors are given very unequal roles, much to the detriment of the accused.

IV. (c) The Trial Phase -The Climate of Inequality
For a trial to be fair, the accused should be accorded the right to substantial parity with the prosecution. This means he should be given an effective chance to challenge any and all evidence produced by the prosecution and to present evidence in defense. In broad juristic terms, this is known as the principle of ))equality of arms«. In legal systems with the inquisitorial procedure, this principle cannot apply literally during the pre-trial stage, given the different roles of accuser and accused. But this principle has been accepted as a critical component of a fair trial. In its report on the applications of Ofner and Hopfinger against Austria, the European Commission of Human Rights was of the opinion that Hwhat is generally called the )equality of arms<, that is the procedural equality of the accused with the public prosecutor, is an inherent element of a fair trial. «10 South Africa espouses the adversary system of procedure in which both the pre-trial and accuser and the accused.l1 Furthermore the postulate of )equality before the law< has been laid down in our case law. In Zgili v McLeod, Lord De Villiers cogently stated: Hit is the primary fu nction of the court to protect the rights of individuals which may be infringed, and it makes no difference wh ether the individual occupies a palace or a hUt.«12 Unfortunately, this principle exists only on paper, for in practice it has been twisted every wh ich way to accommodate the elastic definitions of Hstate security« and Hnational interest«Y If we accept the import of both the De Villiers postulate and the principle of )equality of arms<, namely that any accused should be afforded a symmetrical chance with the prosecution to avail hirnself effectively of all procedural safeguards accorded hirn by law, we should ask ourselves whether South African standards of justice measure up to this definition. The submission is that in South Africa standards of justice are, consciously or uncon sciously, applied according to the colour of the skin. The reason for saying this is predicated upon a realistic perception of a criminal trial, not as being a gray machinery of justice propelled by its own mechanical chain of events, but as social interactive process with an eminently human component, in which the various, parties, with different motives, participate in proportion to their resources. In order to avail hirnself effectively of the equal opportunity safeguard, the accused has to mobilize all cognitive, verbal and interactive resources at his disposal, in order to secure an outcome most fa vourable to hirnself. In South Africa the bulk of the accused in criminal trials are blacks with limited resource capacities. They are, for the most part, indigent black persons with little or no educational background and with very limited communication skills. They come into court bearing the stigma of being second-elass citizens with no political rights, and all the negative biographie details associated with that status. Most of them, as seen from the court-study fi ndings, are without legal representation. The other principal partici pants in the court room -the magistrate and the prosecutor -are white -a colour the accused associates with might and with his own helplessness. This feeling is accentuated by the fact that proceedings in the magistrates' courts are usually conducted in Afri kaans, a language he associates with the police. Indeed, the accused sees hirnself as having no legal rights.14 The cumulative, negative psychological impact of these fa ctors impair his communication ability -his bearing, his mood, his tone. Besides, communica tion is through an interpreter who, as was noted in a elose-in study of the Commissio ners' Courts in Johannesburg, can prejudice the case of the accused.15 The plight of the black accused, is described by Me Millan: He is deficient in, if not totally ignorant of, the language of the courts' proceedings; even if he understands more than fragments from an interpreter, the atmosphere of a law court must add to his natural embarrassment in the presence of masters who are still more conscious of their own superiority to this ragged, unwashed, stammering mortal. This very feeling of superiority is a sore tax on the white man's impartiality and sense of justice in deciding for a coloured person against a white man.l• Another prerequisite for a fair trial is that the adjudicating officer must be im partial. He should not make up his mind before either side has presented its case. However, in the process of making up his mind, or of arriving at the material truth, he is guided by his own conscience.17 In South Africa the magistrates -who adjudicate over the bulk of the ca ses -are civil servants; so, too, are the prosecutors and the investigating police officers. They all serve the State and Hhave a firmly rooted bias in favour of the State inevitably produced by a working life dedicated to the service of its interests and implementation of its policies.«18 On this point Jackson comments: The very nature of their training and experience makes the magistrates lean towards the prosecution. This is particularly evident in young magistrates fresh from pro motion as prosecutors. The promotion and salary of magistrates are controlled by merit committees from Pretoria. These committees travel to all parts of the country examining cases completed by each magistrate, the number of convictions and acquittals and his general demeanour (or his allegiance to the party line in his interpretation of the law). Those magistrates able to dispense >j ustice< very quickly are noted for promotion.19 This coalition of state interests introduces an important variable in the judicial process where the interests of a black accused are weighed against those of a state dedicated to the preservation of white supremacy. According to Blumberg, the privity of interests within the court organization Hexert a higher claim than the stated ideological goals of >due process of law<, and are often inconsistent with them.«20 The fact that South African magistrates are enjoined from making adverse comments on police from the Bench,21 violates a fu ndamental procedural safeguard afforded the accused: publicity. 22 One of the most unedifying features of our criminal justice system has been the stepped up, unilateral appointment of National Party supporters to the Bench. Professor John Dugard points out that at least fifty per cent of the judiciary could broadly be described as supporters , of the National Party Government.23 That these elevations to the Bench are not always founded on merit, is envinced in part by the statements of two South African Ministers of Justice reminding certain political appointees that they should not imagine they were appointed on merit.24 The fact these appointments are made in total disregard of the amply qualified and distinguished advocates known for their antiracist views, evinces the government's inexorable intent to convert the Supreme Court into an organ of justification. This becomes transparent when seen against the discretionary powers delegated to the judge in interpreting vaguely worded political crimes enacted to crush black political opposition to the government. On this point Torstein Eckhoff observes: Judicial policy-making can in some instances be conceived as a service rendered the political authorities. lt is often convenient for a legislator to use broad and unspeci fied language in the statutory provisions and leave to the courts to work out in detail the ways in which social interests should be promoted. But this presupposes that legislators and judges by and large share the same values. The situation is quite different if political and judicial authorities pursue incompatible policies. In that case judicial policymaking will not be a service to the political authorities but will on the contrary hinder them in carrying out their own objectivesY

V. Conclusion
This discussion has merely attempted to portray some of the fe atures of the criminal justice order against which the findings of the court study should be read. One should not shy away from the fact that the South African criminal justice system is racially discriminatory. Professor Van Niekerk, who was known for his candid views on the workings of the criminal justice system, once said: "There has to this day been a conspiracy of silence, co-perpetuated to some extent by all of us (or most of us) on the problem of racial inequality within and before the law.«26 The South African govern ment is, indeed, a passmaster at the art of diversionary debate and semantic hair-solit ting. Slogans are consciously mistaken for solutions: The official appellation accorded the black man evolved from ,Kaffir< to mative<, to 'Bantu<, to 'non-white<, to 'African<, to �temporary sojourner<, and today he is called a �foreigner<. This verbal evolution has, however, not been accompanied by any improvement in the legal status of the blacks; instead, it has merely served to camouflage legislative curtailment of their fu ndamental rights. Similarly, one should not be fo oled into believing that the oft-bandied �Iaw and order< is synonymous to �peace<; nor that �Iegality< is a substitute for �j ustice<. Mencken once said: nThe most costly of all follies is to believe passionately in the palpably not true.«27 It is submitted that the legal profession can lance the boi! of self deception by addressing more openly and more critically the racial irritants within the criminal justice administration. No matter how much one tries to smother open discussion, one will never efface the scar the criminal justice system had left on nearly every adult black. It is true to say that the criminal process had, indeed, become the staple gauntlet that blacks are born to run. Out of this common dehumanizing exper ience has grown an intense hatred for the Apartheid political order, a hatred which manifests itself in the waves of public violence that sweep the face of the country from day to day. To cling tenaciously to legalism and legalistic thinking at this very hour, or to spend a great deal of the time nshoveling smoke«,28 as Oliver WendeIl Holmes (Jr.) would put it, one is directly creating the ingredients for an Aristotelian tragedy. Now, what is it that the legal profession should do? Ideologically, it should move away from the neutral and fo rmal strictures of the Begriffsjurisprudenz to a valueorientated Interessenjurisprudenz. In the words of Professor Dugard: nThe plea here is not for any particular theory of natural law, but simply for the rejection of the strict positivist approach to the role of va lues in the legal process.«29 A positivistic legal science has, after all, to exercise self criticism . As a starting point, the illusion that the law fu nctions neutrally and apolitically should be dispelled. Mere fo rmal equality alone, in a racially classed society, is not the sole component of justice.
Concretely, the legal profession as a whole should agitate more vigorously for the restoration to each and every South African citizen of his or her fu ll complement of classical and social human rights as contained in international instruments; and to agitate that these be ensconsed in a Bill of Rights. This could be done by giving effective material and vocal support to those people and organizations dedicated to this goal. In so far as it concerns the criminal justice process the legal profession should: campaign for the decriminilization of all acts and ideas which have neither victims nor complainants or where the victim is the offender hirnself. The legislature should be pressurized unrelentingly into eliminating the social conditions which render one segment of the population more victimogenous than the other; strive to maintain the fu ll independence of the legal profession as a whole and to repulse any moves by the executive arm of government to extend its suzerainty over the judiciary. Lawyers must support vigorously the demand that judges and magis trates be appointed on merit by an independent council and not by an ideologically inspired Minister of Justice; -seek actively an alternative to the money-bail system which as it presently obtains, discriminates against indigent persons; campaign for rem oval of official discretionary powers in respect of the granting of legal aid; and to substitute same with the automatie granting of legal aid to any indigent accused facing the possibility of a prison sentence; -must insist on the presence of assessors at every trial where the accused faces a prison sentence. The discretionary powers that judges and the Minister of lustice have with regard to the presence of assessors should be taken away. Lawyers must join the call made in 1838 by the Attorney General of New South Wales, Bannister,3° that responsible black assessors must be present where the accused is black. The discretionary powers ofthe police in crisis management should be open to fun public scrutiny. The police should stop seeing the blacks as potential troublemakers. Further more, the police should be incorporated into an overall plan of criminal policy wh ich aims ot the rehabilitation of the offender. As a starting point they should develop a different self-awareness -that of police as a sort of social hygiene. Lastly, black attorneys should not shy away from the chance to occupy the office of public prosecutor, for it is here that one can achieve infinitely more justice in one case than in years of private practice. It is submitted that if these ideas are implemented, one could weIl say that the South African system of criminal process, though not perfect, is, at least, humane.

The Silent Reality : Racial Discrimination in the Criminal Justice Process
By Lavell D. Fernandez The study shows race to be an important variable influencing the outcome of South Afri can criminal trials. The racial discriminatory laws and the way they are implemented en sure that the black population in particular remains in constant contact with the criminal justice system. The court-record study shows that black persons charged with capital of fences are denied a chance to defend themselves effectively: either because they are sub ject to the whims of low-ranking administration officials. The lauer is especially mani fest in the realm of state-endangering crimes where the Executive enjoys considerable la titude in its dealings with detainees and accused persons. An obligation rests on the legal profession to address itself earnestly to the inequities in the criminal justice system. The plea is for a humane justice. Lawyers should resist attempts to bring the judiciary under the control if the Executive. Furthermore, an urgent need exists to expand the am bit of criminal legal aid.
The Sah ara Contlict and the Crisis of the Organization of African Unity

By Jürgen Taeger
The Organization of African Unity (OAU) wh ich has the most individual members of any regional international organization is now experiencing the greatest test of its strength and effectiveness in its 20-year history . In 1975, through the tripartite Treaty of Madrid, Spain transferred possession ofthe colo ny to Morocco and Mauritania. This action was in itself a breach of the existing Decolo nization Rules. Since then the population of the Western Sahara has been struggling to achieve self-determination. In 1976, following the withdrawal of the colonial power Spain, a new state, the Saharan Arab Democratic Rebuplic (SADR), was fo unded. After the signing of a peace treaty between the SADR and Mauritania, Morocco de manded possession of the entire Sahara and proceeded to occupy the so-ca lied Huseful triangle«, an area in the northwest of the Sahara which is very rich in raw materials. The present economic situation in Morocco is catastrophic; the Moroccan king, Hassan II, is able to continue his war against the Saharan Independence Movement, the POLISA RIO Front, only with massive economic and military support from the United States. For years, Hassan II has successfully employed delaying tactics to frustrate the attempts of international organizations, especially of the OAU, to find a diplomatie solution to the conflict. Despite these tactics, Hassan II was unable to prevent admission of the SADR as the 52nd member of the OAU. The monarch and sympathetic African heads of state are now threatening to boycott the OAU. Hassan's efforts did prevent a referen-