Lack of Conviction:

Prosecution’s Poor Performance

Serious and violent crime is increasing at a greater rate than the growth in the number of prosecutors working in South Africa’s courts. Badly paid and under-resourced, many experienced prosecutors are leaving the prosecution service. As a result prosecution and conviction rates are declining and fewer cases are being finalised.

Since 1987 the number of prosecutors has increased from 1 019 to 1 770 (i.e. by 74%).1 Over a similar period (1987—98), the reporting of many serious crimes more than doubled. Serious assault rose by 95%, murder by 153%, rape by 172%, and robbery by 225%. In 1987 there was, on average, one prosecutor for every 45 robberies reported during a year. In 1998 there was one prosecutor for every 85 reported robberies (Figure 1).


Figure 1 Public prosecutors employed by the Department of Justice, 1994—1999

Source: Department of Justice

In mid-1997 the Minister of Justice, Dullah Omar, told Parliament that "according to scientifically determined norms" there was a shortage of 36 senior public prosecutor and 407 public prosecutor posts. At this time there were approximately 1 600 legally qualified graduates on the Department of Justice’s central waiting list who had applied to be appointed as prosecutors. These posts could not be filled "due to a lack of funds", Omar said.

For the current financial year (1999/2000) the Department of Justice’s budget estimate stands at R2.5 billion or 1.1% of the national budget. Some 60% of the department’s budget is devoted to personnel expenditure. The budget for the department has increased by just under 20% over the last three financial years (1995/96—1998/99). The average growth in the national budget over the same period was around 10%.

Towards the end of 1998 the department stopped paying prosecutors for overtime worked. "About R20 million was put aside for overtime payment for 1998. By the end of September the department had already spent R21 million on overtime for its employees," the deputy director general for justice, Mr Vusi Pikoli, said at the time.

The end to overtime pay placed additional strains on prosecutors’ pockets. A beginner prosecutor can expect to earn a gross salary of R50 000 per year. The 1997 interim Hoexter Commission report described the salaries of prosecutors as a ‘national disgrace’. Many prosecutors leave the prosecution service as soon as they have gained some court room experience to earn higher salaries in the private sector.

Belatedly the justice department has reacted positively to prosecutors’ public demonstrations for pay increases. At the end of 1998 prosecutors received a six per cent pay rise. In April 1999 they received an additional six per cent, backdated to December. Moreover, prosecutors will receive a further three per cent increase in September if they meet certain performance goals. These goals include a reduction in the number of awaiting trial prisoners, quicker trials, and a reduction in the number of cases on the court rolls.

For many prosecutors such pay increases are ‘too little, too late’. Between 1994 and 1998 some 546 prosecutors resigned. The high personnel turnover has meant a decline in the experience level of the average prosecutor. In 1997 (the latest period for which figures are available) the average experience level of prosecutors was three and a half years. Experience levels varied from province to province however. In the Western Cape it was a mere six months (Figure 2).

Figure 2 Average experience level of prosecutors in 1997, by regions headed by a then-attorney general

Source: Hansard [NA:Q] no 9, 20 August 1997

Prosecuting is a practically orientated profession. It requires the ability to apply legal theory to the actual cases before court, and to present witnesses and various forms of evidence in such a manner so as to build up a convincing case. Many of these skills cannot be easily taught and are acquired and perfected through practice and experience.

A rapid turnover of staff therefore undermines the professional capacity of the prosecution service. Moreover, a sizeable number of experienced prosecutors who leave the service join the private sector to specialise in criminal law defending clients against their erstwhile colleagues.

That the resignation of prosecutors has taken its toll is borne out by declining prosecution and conviction levels. The number of prosecutions and convictions steadily declined between 1991/92—1995/96 (the latest period for which figures are available). During this time the number of reported crimes increased (Figure 3).

Figure 4 Number of reported cases, and cases with the prosecution service, December 1995 — June 1998

Source: National Expenditure Survey, Department of Finance

As the Department of Justice is spending the bulk of its budget on salaries, little money remains for training, and the purchase and upkeep of equipment and buildings. Prosecutors generally do not have access to even the most basic information technology equipment. There are many prosecutors’ offices around the country without fax machines or computers of any kind. The majority of prosecutors do not have access to decided court cases on CD-ROM and up-to-date law journals, giving defence attorneys who do a decided advantage.

The prosecution service is a crucial element of the criminal justice system. Its inability to function properly has detrimentally affected the state’s fight against crime. Low prosecution and high acquittal rates give the dangerous impression that crime pays. The rising backlog of cases has resulted in a burgeoning prison population where every third prisoner is awaiting trial. As a result prisons are becoming unmanageable and the recidivism rate is high. The criminal justice system can run smoothly only if all of its components — including the prosecution service — operate effectively.

Martin Schönteich,
Institute for Security Studies

These figures refer to public prosecutors only. Senior public prosecutors are excluded. There are presently 95 senior public prosecutors in South Africa. Senior public prosecutors have managerial and administrative duties and appear in court only rarely. Moreover there are 94 senior state advocates, and 100 state advocates who represent the state in the High Court. Over 95% of all criminal trials occur in the country’s magistrates courts however.