Growing disquiet over the Criminal Procedure Act of 1977 has been expressed in South Africa. In a case cited in support of a new call concerning the Act by the South African Institute of Race Relations, it was stated that a young man, Zolile Msenge who was not legally represented was convicted in May 1978 of setting fire to two schools 5 kilometres apart at the same time on the same day. He was sentenced to an effective term of ten years' imprisonment.
This case was cited by the SAIRR in late April when it called on the government to ensure that accused people who faced long prison terms were legally defended when they had to plead in court.
Professor John Dugard, president of the SAIRR, said section 112 of the Criminal Procedure Act allowed a court to convict and hand down any sentence apart from the death penalty, if the accused had pleaded guilty. (Under the Criminal Procedure Act of 1977, an accused is required to plead at a preliminary hearing before a magistrate).
Professor Dugard said that under the Act the State did not have to prove its case against the accused if he pleaded guilty. He referred to the case where Zolile Msenge, who was not legally represented, had pleaded guilty to setting fire to two different schools at precisely the same time. When he appeared for sentence, however, he had a lawyer to watch his interests. But the magistrate had refused to allow Msenge to change his plea to not guilty although his counsel pointed out that he had obviously not understood the charges to which he had pleaded guilty. Furthermore Msenge had also stated that he had been assaulted by a Sergeant Nel who had told him that he must plead guilty.
At the same time, the family of Mrs Elizabeth Gumede told the press that they had not been informed that she had been detained in March nor that she was to appear in court. Further Mrs. Gumede's lawyer claimed that he was not told about her detention until after her first court appearance.
On the other hand the Department of Justice's annual report tabled in parliament on 25 April, claims that the new procedures introduced by the Criminal Procedure Act are "a great success", particularly those "relating to pleas of guilty or not guilty, which had given rise to misgivings during the debate on the Bill".
The report states that magistrates are on the whole very pleased with the Act's operation and that "the accused is spared the anxiety and the waiting which go with repeated postponements.
"The anomaly that occurred previously of an accused pleading guilty and being acquitted (to his own surprise and to the surprise of the complainant and other interested persons), merely because the State had been unable to prove the commission of the offence, has now been eliminated. When the accused is now acquitted, it is clear to him that he had been under a misapprehension concerning his position in law"
During 1978, the report states, 65,018 cases were disposed of without evidence, 379,269 without evidence but after questioning and 232,698 with evidence. The number of cases automatically subject to review has declined considerably: 70,264 cases were submitted to the Supreme Court for review in 1977, but only 31,699 in 1978. "This decrease has brought about a large saving in terms of manpower", the report states.
A new Bill which recently had its third reading in parliament is the Criminal Procedure Amendment Bill, which seeks to "Streamline" the present Act. In parliament the opposition charged that the amendment would remove the accused's right to contest the validity of admissions made before a magistrate at the preliminary hearing.
The Minister of Justice claimed that the intention behind the amendment was simply to eliminate the need for magistrate to give pro forma evidence when submitting an accused's admissions to court. The magistrate could simply hand it in and it would be accepted prima facie that it had been freely and voluntarily made. The accused could, nevertheless, contest this in court, he claimed.
Almost 9,000 people under the age of 18 have been arrested since 1976 for offences linked to 'public violence' and 'sabotage', in other words for having taken part in the mass demonstrations and uprisings after the Soweto events in June 1976. Nearly 6,000 prosecutions succeeded. These figures were complied by the SAIRR and published in the May issue of Race Relations News.
Offences under which these children and young people were charged were: public violence, unlawful and riotous assembly, sabotage, inciting or promoting unrest, arson and malicious damage to property. Of these only sabotage cases are properly-speaking political trials.
There were 4,604 arrests and 3,038 convictions of minors in 1976/77 and 4,219 arrests and 2,908 convictions in 1977/78.
