Study unit 6 (chapter 6): Challenges of the CJS in addressing the needs of victims
and witnesses
• Appraise the challenges that the criminal justice system faces with specific
reference to:
- protecting victims against violence and intimidation.
• The broad function of the criminal justice system is in many ways to ensure
that victims, and society broadly, are protected from crime.
• Goals of criminal justice have been retribution and deterrence, incapacitation,
rehabilitation and compensation.
• In practical terms this has been achieved through the arrest, prosecution and
imprisonment of accused persons
• Often concerns regarding the immediate safety of the victim were neglected
• Even where a suspect had been arrested, survivors were vulnerable to
intimidation, assault or even murder by suspects after they had been released
on bail, or by the family, friends or criminal associates of the suspect
• Prevention, victim participation and empowerment, and improving public
confidence as it pertains to personal safety have only recently become part of
the “justice equation”
• Victim “protection” however, was established much earlier than other victim-
focused measures we see today
• Some of the earlier victim support measures were oriented towards victims of
domestic violence, through the establishment of shelters or “refuges” intended
to provide a safe and temporary dwelling for woman who were exposed to
repeated violence in their homes
• While there is indisputably a critical need for the establishment and support of
such shelters in South Africa as well as on the continent, this response to
violence is not a criminal justice response, while removing the victim from the
common home can only be seen as having limited preventive benefits.
• In some jurisdictions around the world, there has been experimentation with
mandatory arrest policies
• While there are critiques of mandatory arrest internationally, the South African
Domestic Violence Act 116 of 1998 – which provides for victims to be granted
protection orders which, in addition to prohibiting domestic violence, may
forbid other actions by the alleged perpetrator
• This does have something akin to mandatory arrest, though only in a very
limited sense
• There is legal duty on police to make an arrest without a warrant if a
protection order has been breached and they reasonably suspect that the
complainant may face imminent harm as a result
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, • A second early type of “victim protection” measure was the establishment of
witness protection programmes to safeguard witness before, during and after
criminal trials.
• These programs Historically established in South Africa for witnesses in
criminal cases associated with suspected human rights violations and
internationally to protect witnesses in organised crime cases, later extended
their mandates to provide protection against efforts by perpetrator, or his or
her associates, to prevent or discourage victims from participating in the
criminal justice process through violence, the threat of violence, or other
coercive measures, in a range of criminal offence cases.
• Those who receive protection in terms of these programmes are also
sometimes gang or criminal syndicate members who have decided to turn
state’s witness
• Witness protection programmes are state funded and usually form part of the
criminal justice system
• In South Africa the national witness protection programme was established in
1996 by the Department of Justice under the National Crime Prevention
Strategy, and was formally established in terms of the Witness Protection Act
112 of 1998
• The programme is now the responsibility of the National Prosecuting Authority
(NPA)
• The programme provides “temporary protection, support and related services
to vulnerable and intimidated witnesses to testify without intimidation, fear or
danger”
• The NDPP also cites the range of offences for which a witness or related
person may be placed under protection, from treason, murder and rape to
drug related offences, fraud and weapon dealing
• Those who are housed in the programme include not only witnesses
themselves but also their family members or other related persons who also
are believed to be in danger
• The largest number of witnesses, and family members accommodated, was in
2010/11 when 468 witnesses and 906 “related persons” were accommodated
• In subsequent years the total number of people in witness protection has
ranged from 661-869
• As is suggested by these statistics, and increasingly recognised
internationally, witness protection programmes such as that in South Africa
can deal with selected priority cases, but not with the bulk of cases where
witnesses are frightened, intimidated or in danger.
• A 2003 survey at three courts in Gauteng found that 27 percent of witnesses
felt intimidated
• Though some of the respondents in this survey were referring to anxieties
about appearing in court, a large proportion were concerned because of
threats or possible danger to them as a result of testifying
Intellectual Property of Tanlan Webber – Do Not Distribute Illegally © 2
and witnesses
• Appraise the challenges that the criminal justice system faces with specific
reference to:
- protecting victims against violence and intimidation.
• The broad function of the criminal justice system is in many ways to ensure
that victims, and society broadly, are protected from crime.
• Goals of criminal justice have been retribution and deterrence, incapacitation,
rehabilitation and compensation.
• In practical terms this has been achieved through the arrest, prosecution and
imprisonment of accused persons
• Often concerns regarding the immediate safety of the victim were neglected
• Even where a suspect had been arrested, survivors were vulnerable to
intimidation, assault or even murder by suspects after they had been released
on bail, or by the family, friends or criminal associates of the suspect
• Prevention, victim participation and empowerment, and improving public
confidence as it pertains to personal safety have only recently become part of
the “justice equation”
• Victim “protection” however, was established much earlier than other victim-
focused measures we see today
• Some of the earlier victim support measures were oriented towards victims of
domestic violence, through the establishment of shelters or “refuges” intended
to provide a safe and temporary dwelling for woman who were exposed to
repeated violence in their homes
• While there is indisputably a critical need for the establishment and support of
such shelters in South Africa as well as on the continent, this response to
violence is not a criminal justice response, while removing the victim from the
common home can only be seen as having limited preventive benefits.
• In some jurisdictions around the world, there has been experimentation with
mandatory arrest policies
• While there are critiques of mandatory arrest internationally, the South African
Domestic Violence Act 116 of 1998 – which provides for victims to be granted
protection orders which, in addition to prohibiting domestic violence, may
forbid other actions by the alleged perpetrator
• This does have something akin to mandatory arrest, though only in a very
limited sense
• There is legal duty on police to make an arrest without a warrant if a
protection order has been breached and they reasonably suspect that the
complainant may face imminent harm as a result
Intellectual Property of Tanlan Webber – Do Not Distribute Illegally © 1
, • A second early type of “victim protection” measure was the establishment of
witness protection programmes to safeguard witness before, during and after
criminal trials.
• These programs Historically established in South Africa for witnesses in
criminal cases associated with suspected human rights violations and
internationally to protect witnesses in organised crime cases, later extended
their mandates to provide protection against efforts by perpetrator, or his or
her associates, to prevent or discourage victims from participating in the
criminal justice process through violence, the threat of violence, or other
coercive measures, in a range of criminal offence cases.
• Those who receive protection in terms of these programmes are also
sometimes gang or criminal syndicate members who have decided to turn
state’s witness
• Witness protection programmes are state funded and usually form part of the
criminal justice system
• In South Africa the national witness protection programme was established in
1996 by the Department of Justice under the National Crime Prevention
Strategy, and was formally established in terms of the Witness Protection Act
112 of 1998
• The programme is now the responsibility of the National Prosecuting Authority
(NPA)
• The programme provides “temporary protection, support and related services
to vulnerable and intimidated witnesses to testify without intimidation, fear or
danger”
• The NDPP also cites the range of offences for which a witness or related
person may be placed under protection, from treason, murder and rape to
drug related offences, fraud and weapon dealing
• Those who are housed in the programme include not only witnesses
themselves but also their family members or other related persons who also
are believed to be in danger
• The largest number of witnesses, and family members accommodated, was in
2010/11 when 468 witnesses and 906 “related persons” were accommodated
• In subsequent years the total number of people in witness protection has
ranged from 661-869
• As is suggested by these statistics, and increasingly recognised
internationally, witness protection programmes such as that in South Africa
can deal with selected priority cases, but not with the bulk of cases where
witnesses are frightened, intimidated or in danger.
• A 2003 survey at three courts in Gauteng found that 27 percent of witnesses
felt intimidated
• Though some of the respondents in this survey were referring to anxieties
about appearing in court, a large proportion were concerned because of
threats or possible danger to them as a result of testifying
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