The South
African legal system has, in recent years, proposed court specialisation
as one solution to a number of problems confronting justice provision.
Specialised courts have been proposed, and some set up, to hear labour,
land, family and immigration matters. They have either been established
or mooted for the hearing of hijacking cases, allegations of rape or
domestic violence, and commercial crimes. This monograph seeks to
provide an initial assessment of the policies and practices underpinning
these proposals and initiatives, in order to begin to grapple with the
question of whether specialised courts are likely to improve service
delivery in the justice system.
This monograph considers both the desirability and practicality
of court specialisation, and assesses the functioning of an existing
court dedicated to cases of commercial criminality.
Ironically, the research showed that in terms of effectiveness
and efficiency, the most important innovation of the Specialised
Commercial Crime Court was not that it heard only one type of case.
Rather, it was the improved integration of the work of the prosecutors
and investigators whose cases came to these courts that made the
difference. This suggests, of course, that more such gains can be made
in the rest of the system. Some aspects of this innovation may however
not be wholly replicable, and the results should not simply be assumed
if rolled out elsewhere.
The case for and against court specialisation
There are, in
essence, two sorts of cases that are made to justify the creation of a
specialised court in South Africa. The first emphasises the transitional
nature of South African law and asserts that particular areas of law
associated with particular aspects of social transformation (such as
land claims for example) necessitate the creation of courts dedicated to
upholding the relevant legislation. The second is that specialisation
allows skills to be developed in a particular area (for example
hijacking) which in turn means cases can be processed more efficiently.
Moreover, the fact that court time is specifically dedicated to such
crimes means that, once in court, they can be processed more speedily
than may have been the case on an open court roll.
In reviewing these two alternative models of court
specialisation, the monograph distinguishes between court specialisation
proper and what is denoted court dedication or reservation. The former
relates to the legislatively mandated creation of parallel courts
designed to hear a narrow range of cases, while the latter relates to
the mere ‘dedication’ of ordinary court resources—infrastructure as well
as personnel in the magistracy and prosecution service—to the hearing
of particular cases.
In relation to the two models of court specialisation the
monograph suggests that, for a variety of reasons, specialisation is
more difficult and problematic to implement than court dedication.
Nevertheless, court dedication is not an entirely problem-free
endeavour. The biggest risks associated with court dedication—risks that
exist also in specialised courts—are that the creation of such courts
will generate practices that work against the maintenance of
professional objectivity among the judicial and prosecuting staff. Cases
in such courts will, after all, tend to involve a rather limited number
of professionals, and the resulting familiarity creates the potential
for increased and unhealthy cosiness.
Despite these potential difficulties, the monograph argues that
court dedication, if appropriately used, does offer rewards to deal
with local and specific capacity constraints.
The Specialised Commercial Crime Court
In November
1999, the Specialised Commercial Crime Court in Pretoria opened its
doors for business. With the assistance of Business Against Crime, the
court was established in order to help rectify the perceived inability
of the criminal justice system to cope with cases of commercial crime.
Although these capacity-related problems were and are widely perceived
to extend far beyond the relatively narrow range of cases of commercial
crime, it was felt that they were compounded by the complexities of
commercial crime cases.
The court itself is really just two ordinary regional courts
set aside for the hearing of cases brought by the team of prosecutors
housed in the Specialised Commercial Crime Unit (SCCU). And, given that
most large regional courts have magistrates and prosecutors dedicated to
the hearing of commercial cases, there is, to all intents and purposes,
nothing terribly innovative about the court itself. What is innovative,
however, is the manner in which the work of the detectives of the SAPS
Commercial Branch in Pretoria is integrated with the work of the
prosecutors of the SCCU, as manifested in the completion of cases for
presentation in the court. It is here that the innovative character of
the court is evident.
The SCCU is composed of 20 prosecutors responsible for
presenting the commercial crime cases investigated by Pretoria’s
Commercial Branch. However, unlike the practice in the rest of the
criminal justice system, the prosecutor assigned to a particular case is
involved in its investigation at a much earlier point in time. Indeed,
shortly after the case first comes to the attention of an investigator
at the Commercial Branch, she is required to present a draft
investigation plan to the prosecutor. They will then be jointly
responsible for ensuring that the docket from which a charge sheet is
drawn, and which is eventually closed, is properly completed.
Assessing the impact of the dedicated court, and the
integration of the investigative and prosecuting functions, is extremely
difficult. Despite the complexities associated with proving a
commercial crime case, as well as the fact that people charged with
commercial crimes tend to have better legal representation, the
Specialised Commercial Crime Court maintains a case completion rate
similar to other regional courts: about nine cases closed per magistrate
per month. This reflects well on the quality of the cases prepared by
the responsible investigator/prosecutor teams. The conviction rate of
nearly 90% of all closed cases also reflects this. As has already been
suggested, however, these successes appear to have more to do with the
integration of the investigation and prosecution functions than with the
existence of the court itself.
Investigators, prosecutors and defence counsel interviewed in
the course of this research suggested that the reasons for the
relatively high level of success in the courts could be ascribed to
three factors:
Although it is
clear that these positive effects raise the effectiveness and efficiency
of the court, it is also true that there are important features of this
court that must qualify any assertion that this approach will
necessarily succeed elsewhere.
The evaluation
of the Specialised Commercial Crime Court is, therefore, qualified.
There is no doubt that the court itself is an effective and efficient
institution. What is less certain is what accounts for that success, and
whether it would be replicable in other jurisdictions or in relation to
other categories of crime. For this reason, it is unfortunately
difficult to offer any clear-cut recommendations for rolling out the
innovation. What is clear, however, is that specialisation by itself is
no panacea.
In any event, the fact that specialisation in the case of
commercial crime has been a success should not be used to justify any
and all proposals for prosecuting or investigative specialisation. Such
an approach, as has been argued in the case of some of the specialised
units in the SAPS, often simply papers over the cracks in existing
systems.
