Hundreds of thousands of people charged with crimes are paying their way out of criminal records in deals brokered by prosecutors in court hallways.
Out-of-court settlements in criminal cases have become commonplace in an attempt to clear court backlogs and save the state the cost of a trial. Some 150,000 were settled in a year, an overview by Africa Criminal Justice Reform showed.
But the “perverse incentive” of money opens the door for the rich to buy their way out of a trial and a criminal conviction, say some legal experts.
They warn that the mediation of criminal cases by prosecutors and lawyers undermines justice and can lead to “manipulation and coercion”.
While mediation in civil litigation is legislated, mediation in criminal cases is not. It involves the prosecutor in “minor” cases such as assault, malicious damage to property and petty theft overseeing a settlement in which the accused agrees to certain terms to have the case withdrawn.
An example played out in the Randburg magistrate’s court this week after a woman who was brutally assaulted following a fender bender was asked by the prosecutor to consider an out-of-court settlement.
Candice’s representative was very aggressive with me. I didn’t like it. They kept saying I must make a decision and I told the prosecutor, ‘No, I am not ready’
— Zandile Mbazima
Zandile Mbazima, an unemployed single mother who makes ends meet by doing deliveries, said she felt “backed into a corner” by the accused’s “aggressive” legal team.
The assault occurred in February, when Mbazima drove into the back of Candice Adams’s car. Adams confronted Mbazima, pulling her out of her car and allegedly punching her repeatedly in the face. The incident was filmed on a cellphone by a witness and Adams was later arrested.
The day before this week’s court appearance, Mbazima and her team met with Adams and her team to discuss a proposed settlement: a R12,500 payment for Mbazima, an apology from Adams and an undertaking to undergo a court-approved programme for anger management.
Mbazima said the senior prosecutor warned her that if she went ahead with the charges, there was no guarantee of a guilty verdict and that even if Adams was convicted, she was unlikely to be imprisoned and any fine would go to the state.
“Candice’s representative was very aggressive with me. I didn’t like it. They kept saying I must make a decision and I told the prosecutor, ‘No, I am not ready,’” Mbazima said.
Magistrate Simone Liedeman postponed the matter to July 17.
According to the department of justice, as of August last year 52.9% of the 44,495 cases being heard in regional courts across the country had been under way for longer than nine months.
Prof Lukas Muntingh, co-founder and project co-ordinator of Africa Criminal Justice Reform (ACJR), says there is no basis in law for alternative dispute resolution mechanisms (ADMRs) that “allow prosecutors to assume powers not provided to them by the constitution”.
“The fact that it happens behind closed doors or in court hallways without judicial oversight completely undermines justice,” Muntingh said.
“There is no good message to the public about societal values. The national director of public prosecutions says the victim is always given the reasons for the settlement, but I find that questionable.”
The office of the NDPP offers people the opportunity to complain if they feel their interests were not served by an ADMR decision.
“Money is a perverse incentive and allows perpetrators to buy their way out. There is no legal basis for the state to withdraw charges conditionally,” Muntingh said.
The other difficulty was that there was no central register of mediated cases, enabling serial offenders who repeat their crimes — such as sexual harassment — in different regions to go undetected because the cases cannot be linked.
“That ADRMs are unregulated is tremendously dangerous,” he said, referring to a 2019 road rage case in Emalahleni in which three men accused of seriously assaulting a couple bought their way out of prosecution by paying the victims R5.4m to withdraw the charges.
Muntingh said 146 993 ADRM cases were registered nationally in 2019/20, according to the NPA's annual report. "This is the last year in which the NPA made this number public."
Without clear regulations you can end up with the weaker party (be it offender or victim) being coerced or bullied. In practice, the ideal and reality are often very different
— Lisa Vetten, gender specialist on violence against women at the Commission for Gender Equality
Of this of this 103 821 cases were resolved through mediation in district courts and 2 174 in regional courts.
"This is horrifying because regional courts sentence offenders to three years in prison and more, so these are serious crimes. These are cases that are being handled in a legislative vacuum. The risk for abuse and bribes is massive."
Lisa Vetten, gender specialist on violence against women at the Commission for Gender Equality, said mediation was being used to reduce pressure on the courts but it needed to be done within a regulatory framework.
“Mediation can be good, but only when it’s completely voluntary and supported by the state and not coercive,” she said. “If not, it undermines the justice system and drives inequality, allowing offenders with resources to buy their way out. It’s also completely inadvisable in situations where there is an imbalance of power.
“Without clear regulations you can end up with the weaker party (be it offender or victim) being coerced or bullied. In practice, the ideal and reality are often very different,” Vetten said.
Wits University law professor Peter Jordi said there was space in the ADMR system for manipulation and coercion.
It was not functioning properly and favoured offenders, whose cause was helped by court delays and dockets going missing.
The backlog in civil cases was highlighted in a directive issued by Gauteng judge president Dunstan Mlambo in April in which he said trial dates six years hence were being allocated now. Therefore all civil cases — 85% of which are settled on the day of trial — must undergo mandatory mediation before being heard.
Said Jordi: “Even if the victim of a crime goes to trial, the victim will be attacked by a rabid defence, chewed up by the court and spat out with nothing.”
National Prosecuting Authority spokesperson Bulelwa Makeke said the use of mediation in certain criminal matters had always been available in the system.
“Depending on the merits of the matter at hand, such consideration can be made by the prosecutor, and such ADRM must also be accepted by the judicial officer,” she said.
Deepna Desai, an attorney with a special interest in mediation, said ADRM offered potential advantages such as allowing injured parties to obtain closure. “The problem is that prosecutors don’t know what they are doing or understand the process,” she said.
Mediation in criminal cases is among the issues in a review of the criminal justice system being conducted by the South African Law Reform Commission. The commission proposes providing for the legislative regulation of conditional withdrawals of prosecution.
It says one of the challenges is “leaving the decision whether to apply ADRM entirely up to prosecutorial discretion, thus encouraging inconsistency in application and a lack of uniformity”.
Cape Town criminal defence lawyer William Booth said mediation was being used in criminal cases such as “assault, car crashes, malicious injury to property — depending on the seriousness”.
He said it could be used in more serious cases in which, for example, a complainant was seeking the return of a large amount of stolen assets.
“But the prosecution can never be seen to allow a payoff,” Booth said. “Mediation must be in the interest of justice; it must be fair and constitute other elements such as voluntary work, anger management or rehabilitation. It’s ideally a win-win because, if the agreed settlement is not adhered to, the charges will be reinstated.”
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