Media release: Radical criminal justice reform: Decriminalise victimless conduct and keep our judiciary independent

Media release
20 June 2017
Release immediate

Radical criminal justice reform: Decriminalise victimless conduct and keep our judiciary independent

South Africa is renowned globally for violent crime and rape. Law enforcement in South Africa has a monumental job and the ANC Policy Conference at the end of June rightly has safety and security on its radical transformation agenda. The Free Market Foundation (FMF) continues to advocate for radical transformation of the criminal justice system to ensure law, order, peace and security in South Africa and the transition from the apartheid-era authoritarian behemoth into a system that serves to protect the people and holds government to account. Decriminalising victimless crimes, removing incentives for corruption within discretionary powers and keeping the judiciary independent would be a good start.

The FMF calls on the ANC to abolish victimless crimes, which include prostitution, some traffic offenses, dealing in drugs and contravening exchange regulations. ‘Victimless crimes’ are those acts or omissions criminalised by government despite there being no complainant. These are distinguished from ‘victimisation crimes’ where an individual’s rights have been criminally violated. Most victimisation crimes exist without having to be declared in an Act or regulation to be unlawful, such as assault, theft, rape, kidnapping and murder.

Pursuing victimless crimes prevents the police from fighting real criminals. Police resources are under pressure. One way to alleviate this is to stop wasting time and resources pursuing value-subjective crimes where no individual rights have been violated and allow the police to focus on real crimes against persons and property.

The practical case is obvious – police resources targeted efficiently – but there is also a philosophical argument. Our liberal democratic society places a high value on individual liberty. The decriminalisation of victimless crimes would mean legalising the actions of a substantial number of ordinary, well-intentioned citizens who aspire only to get on with life without violating the rights of those around them but who currently and often without intention, fall foul of the law.

The sheer amount of traffic regulations, which are often arbitrary and sometimes unknown to motorists, turn practically all citizens into criminals. Citizens seeking help with drug abuse are deemed criminals. Outlawing prostitution – the act of engaging in voluntary conduct for money – turns many, mainly women, into criminals and the recent resolution by the South African Law Reform Commission to keep prostitution a crime is mistaken.

Corruption is a major crime in SA. Yet the major cause of corruption is the increasing use of discretionary powers by officials, which presents those who hold it with irresistible incentives. Wherever government has the discretion to grant or withhold contracts, licenses, protection, subsidies and other privileges, there is real or suspected corruption. The only way to get ‘money out of politics’ is to get politics out of money first, and ensure officials are bound by strict and unambiguous criteria in the exercise of their powers.

A critical step towards a modern and independent legal system is to stop the ill-conceived idea of only appointing judges with a “progressive” or “social minded” approach. This is dangerous and contrary to the rule of law. An independent judiciary is fundamental to a well-functioning democracy.

Politicising the judiciary will make the corruption problem worse and the decision by the ruling party to consider making a ‘progressive’ mindset of social activism part of the criteria for appointing judges to the bench, is a dangerous move. In this instance ‘progressive’ means the judiciary must favour government action in economic and social affairs rather than emphasising individual rights.

FMF legal researcher Martin van Staden said, “Judges should follow the letter of the Constitution and not the ideological preferences of whomever controls government. Constitutional democracy places less emphasis on which political party governs at any particular time and more on the values in the Constitution itself.”

South African judges are renowned for their eminence, impartiality and respect for the law. If value-subjective appointment criteria such as ‘progressivism’ or ‘social activism’ are applied to the judiciary, the outcome is dangerously unpredictable and stands to delegitimise the courts entirely. Politicising the judiciary will take our courts out of the dispute-resolving business and make it a third house of Parliament.


Note to the Editor

This media release is 10 in a series of 10 in which the Free Market Foundation (FMF) will provide alternatives to the various policy discussion planks of the African National Congress’ 2017 National Policy Conference.

Previous MEDIA RELEASES in this series

1. ANC Conference must adopt real radical economic transformation – not more of the same paternal statism

2. ANC Conference must reject ICT White Paper and Hate Speech Bill for South Africa to drop Apartheidesque communications policy

3. Radical economic transformation means South Africans keep and control their own money

4a. For radical economic transformation in energy, adopt the 1998 White Paper

4b. Yes – introduce radical economic transformation in labour policy and help 9 million unemployed

5. “Amandla! Awethu!” means power to the people, not government – it’s time to decentralise!

6. 23 years post-apartheid, South Africa needs to be radical about land reform

7. Education needs radical transformation. Don’t leave our children in the apartheid era

8. Radical healthcare transformation: Bring healthcare back to the people and away from government

9. Radical legal transformation: Embrace Mandela’s rule of law not apartheid arbitrary governance


You can access more IN-DEPTH DOCUMENTATION regarding the above on the FMF’s website:

Submission on building safer communities (National Development Plan)

Article on the dangers of politicising the judiciary

The FMF will be hosting a MEDIA BRIEFING on 21 June 2017

The secret of China’s success – innovation and entrepreneurship

Dr Martyn Davies will answer Leon Louw’s questions on what makes Chinese SPECIAL ECONOMIC ZONES (SEZs) special and why, if South Africa is serious about RADICAL ECONOMIC TRANSFORMATION, it should learn from China

FMF defines Radical Economic Transformation as being less of the same and more of policies that result in transformation and that elusive inclusive growth

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