Authored By: Priscilla Ruth Wilhemena Louwskitt
University of the Western Cape
ABSTRACT
This paper examines the effectiveness of South Africa’s criminal justice system within the context of its constitutional framework. The system is grounded in constitutional values such as human dignity, equality and freedom, shaped by South Africa’s oppressive history of apartheid and colonialism. While the Constitution seeks to prevent abuses of state power and protect the rights of arrested, detained and accused persons, South Africa continues to experience alarmingly high levels of crime.
The paper explores the historical development of South Africa’s criminal justice system and explains why the post-apartheid legal order rejected a purely retributive approach to punishment in favour of restoration, rehabilitation and reconciliation. It further examines perceptions of leniency within the criminal justice system and how this is often associated with the escalation of crime rates and declining public confidence.
Drawing on relevant case law and social realities, the paper argues that South Africa’s criminal justice system has struggled to strike an appropriate balance between protecting constitutional rights and ensuring accountability for criminal conduct. The final section considers possible reforms, with particular emphasis on restorative justice and the principle of ubuntu, as mechanisms to promote accountability while remaining consistent with constitutional values.
INTRODUCTION
South Africa past has played a significant role within South Africa’s criminal system. The oppressive nature of the apartheid system has driven South Africa into a nation governed by human dignity , equality and repression and abuse of power. The Constitution thus served as a bridge between the injustices of the past and the democratic values of the present, ensuring that state power is exercised in a manner that respects the fundamental rights of every individual.
Due to South Africa transformed system , the South African criminal law system is grounded to protect rights of arrested , detained and accussed persons. Various practitioners puts emphasise on South Africa constitution which seeks to depart from a system of authoritative practices within the past. Despite the “so called”, bridge South Africa still experiences a high increase in crime , which results in widespread public fear and frustration.1 Many members of society believes that the criminal justice system is too lenient on accused, arrested and detained persons, which results in them not being held accountable to the extent of crime they had committed.
The main research topic within this paper is bsed on South Africa’s criminal justice system which doesn’t serve proper justice within South Africa. In order to delve into this topic, the paper is divided into four main areas of discussion. The first examines the history behind the constitution. The second part looks at how the criminal system has failed us. The third segment looks at various changes which could be made within our criminal system to ensure punishment and recognition of crimes.
Historical Context, Transformative Constitutionalism and the Effectiveness of the Criminal Justice System
Within this section , the history of colonialism and its influence of South African laws particularly criminal law system will be discussed with particular emphasis on colonial foundations which has shaped the constitutional model to promote peace , reconciliation and restorative justice. South Africa criminal justice system has a long and complex history which explains why the country seeks to avoid retribution known as punishment. Under colonialism and apartheid the criminal law system was seen as a tool of torture , control, oppression and dominance rather than a system aimed at justice and restoration. During this dark period punishment was harsh , and frequently violent and dignity wasn’t a central figure. Thus , the post apartheid legal order deliberately rejected a strictly retributive approach to punishment and embraced a constitutional vision which was grounded on constitutional values such as human dignity , eqaulity and freedom.
This shift is closely linked to the concept of transformative constitutionalism, which refers to the ongoing process of transforming South African society from an unjust and unequal past into a democratic and humane constitutional order.2 The Constitution was intended to serve as a bridge between past injustice and present constitutional values, requiring all branches of government, including the criminal justice system, to operate in a manner that promotes social justice, reconciliation and human dignity. In this transformative context, the criminal justice system is no longer viewed merely as a mechanism for punishment, but also as an instrument for social reform and rehabilitation.
This transformative vision is closely connected to the concept of ubuntu, a transitional norm reflecting the idea that a person is a person through other people. The Constitutional Court has recognised ubuntu as an important constitutional value, particularly in the context of criminal law.3In S v Makwanyane, the Court relied extensively on ubuntu in holding that the death penalty was unconstitutional, emphasising that even the most serious offenders are entitled to dignity and humane treatment.4 Ubuntu was therefore understood to form part of the moral foundation of South Africa’s new constitutional order.
Although Ubuntu promotes reconciliation and restorative justice, it does not justify exempting offenders from accountability for their crimes which results in tension. This tension becomes even more apparent when one considers the current levels of crime in South Africa. In recent years, crime rates have remained alarmingly high, with reports indicating that during the period 2024 to 2025, approximately 63 serious crimes were committed per day.5 These figures have intensified public fear and raised serious concerns about the effectiveness of the criminal justice system.6 Many South Africans therefore question whether a system rooted in rehabilitation is capable of responding effectively to the country’s severe crime problem.
Accordingly, the continued rise in crime has placed South Africa’s criminal justice model under intense scrutiny. While the system aspires to promote dignity, rehabilitation and restorative justice, the persistent prevalence of violent crime suggests that it may be failing to achieve its fundamental objectives. This raises an important question as to whether South Africa’s criminal justice system has succeeded in striking an appropriate balance between constitutional ideals and the urgent need for effective crime control.
FAILURE OF CRIMINAL SYSTEM
Within this section, the failure of South Africa’s criminal justice system is examined, as reflected in the sharp increase in reported crimes since the early 1990s and the steady decline in conviction rates.7 This growing gap between the number of crimes reported and the number of successful prosecutions demonstrates a criminal justice system that is increasingly unable to deliver justice effectively.8 The inability of the system to respond efficiently to crime has contributed to a widespread perception that offenders are not being held accountable, thereby undermining confidence in the administration of justice.
The failure of the criminal justice system has had particularly severe consequences within impoverished communities. Studies such as those conducted by the Commission on Gender Equality have highlighted the prevalence of rape, gangsterism and violence in disadvantaged areas, often linked to poverty, social inequality and inadequate policies.9 These systemic failures have resulted in a significant decline in public trust in the criminal justice system, leaving many South Africans feeling unsafe and vulnerable. In this context, communities sometimes resort to justice, thereby further undermining the rule of law and the protection of human rights.
Despite these systemic failures, the courts continue to place strong emphasis on the constitutional rights of accused and convicted persons, even in cases involving serious sixty-three-murders-committed-daily-political-parties-slam-delayed-release-of-south-africas-shocking statistics/ accessed 22 January 2026 offences. This approach was evident in S v Niemand, where the court reduced the accused’s sentence after considering his personal circumstances and constitutional rights.10 Although such decisions reflect the judiciary’s commitment to constitutional values such as human dignity and fairness, they are often perceived by the public as lenient and more concerned with the rights of offenders than with the suffering of victims.11 While constitutional rights remain essential to a democratic legal order, the inability of the criminal justice system to deliver swift, effective and credible justice has left many South Africans feeling abandoned by the institutions meant to protect them.
REFORMS
This section explores possible reforms to the South African criminal justice system and considers how the system can be transformed into one that restores justice while still holding offenders accountable. I will look at how restoration and Ubuntu can be used effectively to restore people.
A restorative response should be adopted within the South African criminal justice system. Restorative justice views crime as an act committed against the victim and the broader community, and looks at how this could be corrected. This approach recognises that offenders also require assistance and rehabilitation, and it seeks to identify the underlying causes of criminal behaviour in order to prevent future re-offending.12 Such an approach ensures that offenders are held accountable for their actions while also addressing the needs of victims and communities. However, restorative justice should not exist in isolation. It should be accompanied by a retributive response, which ensures that meaningful punishment is imposed for criminal conduct.13 The combination of restoration and punishment promotes accountability and reinforces public confidence in the criminal justice system, thereby creating a greater sense of justice and equality.
The principle of ubuntu, while promoting reconciliation and human dignity, should not be applied in a manner that allows offenders to escape appropriate punishment. Instead, ubuntu should be used to foster peace, social harmony and rehabilitation, while still ensuring that offenders are held responsible for their actions. In this way, ubuntu can contribute to a criminal justice system that balances compassion with accountability, and reconciliation with justice.
CONCLUSION
The failure of the criminal justice system to respond swiftly and effectively to crime has contributed to fear, vigilantism and increasing calls for harsher punishment. At the same time, South Africa’s commitment to transformative constitutionalism and ubuntu reflects an important desire to move away from the injustices of the past and towards a more humane legal system.
BIBLIOGRAPHY
JOURNAL ARTICLES
Sarkin J, ‘Fighting crime while promoting human rights in the police, the courts and the prisons in South Africa’ (2000) 4 Law, Democracy and Development 93.
Nortje W, “Decolonising the South African Criminal Procedure: Towards a Critical Approach to the Use of Ubuntu in Sentencing” (2024) 27 Potchefstroom Electronic Law Journal (PER/PELJ) 1–25.
INTERNET SOURCES
Department of Justice and Constitutional Development, Restorative Justice (Justice) https://www.justice.gov.za/rj/rj.html accessed 22 January 2026.
Phillips, M ‘Wisenberg, MP | W Attorneys – legal services including corporate and commercial law, conveyancing, dispute resolution, family law, and insolvency’ available at https://www.mpw.co.za/ accessed 22 January 2026.
Metz T, ‘Reconciliation as the Aim of a Criminal Trial: Ubuntu’s Implications for Sentencing’ (2019) 9 Constitutional Court 113–134 available at https://doi.org/10.2989/CCR.2019.0005 accessed 22 January 2026.
Mkwananzi M, ‘Sixty-three murders committed daily; political parties slam delayed release of South Africa’s shocking statistics’ The Star (30 November 2025) available at https://www.thestar.co.za accessed 22 January 2026.
Mutizira F, Many rape survivors won’t see justice due to gaps in the system Health‑e News (24 November 2025) available at https://health-e.org.za/2025/11/24/many-rape-survivors wont-see-justice-due-to-gaps-in-the-system/ accessed 22 January 2026.
Selebano N, The persistence of male gangs in South Africa (Commission for Gender Equality, 2024) available at https://cge.org.za/the-persistence-of-male-gangs-in-south africa/ accessed 22 January 2026
CASE LAW
S v Niemand (CCT 28/00) [2001] ZACC 11 (CC).
LEGASLATION
The Criminal Law Act Act 51 of 1977.
1 Maurice Phillips | Wisenberg, MP|W Attorneys – legal services including corporate and commercial law, conveyancing, dispute resolution, family law, and insolvency (Cape Town law firm), available at https://www.mpw.co.za/.
2 Windell Nortje “Decolonising the South African Criminal Procedure: Towards a Critical Approach to the Use of Ubuntu in Sentencing” (2024) 27 pg.1–25.
3 Thaddeus Metz ‘Reconciliation as the Aim of a Criminal Trial: Ubuntu’s Implications for Sentencing’ (2019) 9 Constitutional Court Review 113–134 https://doi.org/10.2989/CCR.2019.0005.
4 Windell Nortje “Decolonising the South African Criminal Procedure: Towards a Critical Approach to the Use of Ubuntu in Sentencing” (2024) 27 pg. 1–25.
5 Masabata Mkwananzi, Sixty-three murders committed daily; political parties slam delayed release of South Africa’s shocking statistics, The Star (30 November 2025) available at https://thestar.co.za/news/2025-11-30- sixty-three-murders-committed-daily-political-parties-slam-delayed-release-of-south-africas-shocking statistics/ accessed 22 January 2026).
6 Masabata Mkwananzi, Sixty-three murders committed daily; political parties slam delayed release of South Africa’s shocking statistics, The Star (30 November 2025) available at https://thestar.co.za/news/2025-11-30-
7Jeremy Sarkin ‘Fighting crime while promoting human rights in the police, the courts and the prisons in South Africa’ (2000) 4 Law, Democracy and Development 93.
8 Faith Mutizira, Many rape survivors won’t see justice due to gaps in the system, Health-e News (24 November 2025) available at https://health-e.org.za/2025/11/24/many-rape-survivors-wont-see-justice-due to-gaps-in-the-system/ accessed 22 January 2026.
9 Naledi Selebano, The persistence of male gangs in South Africa, Commission for Gender Equality (2024), online: CGEavailable at https://cge.org.za/the-persistence-of-male-gangs-in-south-africa/ accessed 22 January 2026
10 S v Niemand (CCT 28/00) [2001] ZACC 11 (CC).
11 S v Niemand (CCT 28/00) [2001] ZACC 11 (CC).
12 Department of Justice and Constitutional Development, Restorative Justice, online: Justice available at https://www.justice.gov.za/rj/rj.html accessed 22 January 2026
13 Department of Justice and Constitutional Development, Restorative Justice, online: Justice available at https://www.justice.gov.za/rj/rj.html. accessed 22 January 2026
