South Africa's Law Reform Commission unveils ambitious proposals to transform criminal justice system

The South African Law Reform Commission (SALRC) has proposed changes to the Criminal Procedure Act (CPA). It has released four discussion papers for public comment. These papers are a critical step in the ongoing efforts to modernise South Africa’s criminal justice system in line with the Constitution and contemporary justice imperatives.

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The SALRC falls under the Department of Justice and Constitutional Development and conducts research to review South African law.

The key areas covered in the review include:

Arrest Dispensation Reform

Under Arrest Dispensation Reform, the SALRC recommends that arrests be made only when necessary.

“Arrests should primarily secure an accused’s court appearance or prevent harm, interference with evidence, or obstruction of justice. Unlawful arrests have led to litigation, impacting public funds.”

To reduce unnecessary arrests, the SALRC suggests expanding the use of written notices for more offences by revising section 56 of the CPA and regularly updating fine thresholds.

Read more: The cost of arbitrary SAPS arrests — in human and financial terms — is unacceptably high

It also proposes excluding non-violent offences like theft and fraud from warrantless arrests under section 40(1)(b) and instead issuing summonses. According to the commission, the National Prosecuting Authority (NPA) should streamline its processes to expedite the issuance of summonses.

The SALRC highlights the lack of legal representation before first court appearances and recommends amending section 39 to require the police to inform arrestees of their right to legal aid.

“Police should assess the legality of arrests within 12 hours and release suspects if necessary. Revisions to section 49 would limit the use of deadly force to immediate threats, removing provisions that could justify extrajudicial killings. The definition of ‘peace officer’ should be refined, requiring accredited training. Electronic summonses should be permitted under strict conditions. The definition of ‘aggravating circumstances’ should include toy or imitation firearms.”

Bail System 

The SALRC’s assessment of South Africa’s bail laws highlighted key gaps requiring urgent reform: improving victim participation, lessening bail delays, strengthening police powers to grant bail, regulating bail pending appeal and granting bail to foreign nationals.

The commission’s recommendations include the inclusion in the CPA or law enacted to substitute it, of a chapter containing enforceable and justiciable provisions (rights) expressly stipulating how the victims of crime generally should be treated by organs of state operating in the criminal justice system and providing remedies for infractions of these injunctions.

The SALRC recommends reforms to bail processes, including allowing property-secured bail, scrapping pre-trial detention for minor offences, and requiring the police to verify addresses within 24 hours. It also proposes stricter police bail powers, conditions for bail pending appeal, and retaining provisions for foreign nationals at risk of absconding.

Read more: Edwin Cameron: SA law enforcement is in a ‘frightening vortex’ and we must change how we deal with punishment

Alternative Dispute Resolution

As far as Alternative Dispute Resolution (ADR) is concerned, the commission is advocating for the statutory recognition of mediation, diversion and restorative justice mechanisms to improve access to justice and reduce court congestion.

This includes the introduction of non-trial resolutions (NTRs) for economic crimes, incorporating deferred prosecution, non-prosecution agreements and judicial oversight, underpinned by transparency, accountability and fairness.

The Judicial Commission of Inquiry into State Capture recommended the introduction of deferred prosecution agreements (DPAs) as an alternative to criminal prosecution for companies implicated in economic crimes, suggesting that if the corporation complies with the DPA, the charges are dropped, but if it fails to comply, the prosecution will proceed.

Read more: How the NPA’s new weapon can help combat corporate corruption

The SALRC intends to build on that foundation for corruption cases.

“NTRs would save prosecuting authorities the time and expense of a full trial, which can take up to 10 years in complex corruption cases. They would give South Africa a seat at the table where law enforcement agencies from other countries resolve corruption charges with a multinational company and a share in the penalties.

“They can save companies from bankruptcy, which is often a consequence of a finding of guilt, saving jobs and share value. Not all companies would be eligible for an NTR — only those who demonstrate the capacity for reform.”

According to SALRC, the NPA recently adopted a policy directive (the Corporate Alternative Dispute Resolution Directive) to provide for a simple form of NTR.

Victim-centric reform

The SALRC proposes a victim-centric reform, aiming to strengthen protections for victims, complainants and witnesses within the justice system. This includes ensuring their voices are heard at all stages of the bail process, with mechanisms in place to support their safety, participation and dignity.

Read more: Restorative justice in South Africa could benefit both victims and perpetrators of violence

“By prioritising their needs, the reform seeks to address their rights more effectively, ensuring they are not marginalised or overlooked during proceedings. Enhanced victim support services, alongside proper safeguards, will be integrated into the broader justice framework to guarantee that victims are treated with respect and fairness throughout legal proceedings,” said the commission.

“These legislative amendments must embody the principles of transparency, accountability and fairness in the South African Constitution. The SALRC has undertaken intensive research and stakeholder engagement on this subject and hereby invites further submissions from organisations and members of the public.”

Read more: Justice Minister calls for a victim-centric parole system

What happens next?

Following the publication of the discussion papers, Kgalalelo Masibi, chief communication director at the Department of Justice, told Daily Maverick that SALRC will await public comments, which researchers and the advisory committee, including the NPA, Legal Aid South Africa, SAPS, Correctional Services, and the Department of Justice will then analyse.

“The SALRC will also host virtual and physical workshops to gather stakeholder input before the Department of Justice incorporates recommendations into a draft bill. This bill will address pre-trial procedures, technical amendments, and outdated terminology in the Criminal Procedure Act. Given the CPA’s complexity, the legislative process could take months or even years.”

Masibi added that the draft bill will undergo public consultation before being introduced in Parliament. 

“While the goal is to table it within the first half of the current administration’s term, the timeline for enactment remains uncertain due to rigorous parliamentary procedures and ongoing research into further legislative changes.”

The discussion papers are obtainable at the SALRC’s offices and are available for download on this link.

Interested parties wishing to comment on the discussion papers should e-mail their input by 31 March to [email protected]. DM