“Justice delayed is justice denied”. Records management and the travesty of justice in South Africa
| Published date | 16 November 2015 |
| Date | 16 November 2015 |
| DOI | https://doi.org/10.1108/RMJ-06-2015-0023 |
| Pages | 288-305 |
| Author | Mpho Ngoepe,Salmon Makhubela |
| Subject Matter | Information & knowledge management,Information management & governance |
“Justice delayed is
justice denied”
Records management and the travesty of
justice in South Africa
Mpho Ngoepe and Salmon Makhubela
Department of Information Science, University of South Africa,
Pretoria, South Africa
Abstract
Purpose – The purpose of this study is to investigate the cases of “delayed and denied” justice that
resulted from a lack of or poor record-keeping in the South African courts and police service with a view
to encouraging proper records management. Proper records management plays a signicant role in
supporting the justice system. Records provide the critical evidence that a particular action or
transaction took place and can be used as evidence in a court of law. Without reliable and authentic
records, government cannot administer justice and, as a result, offenders can be set free while the
victims are denied justice.
Design/methodology/approach – Utilising content analysis, this study extracted print media
articles (2000-2012) relating to the “records and justice system” from the South African Media database,
which is one of the databases hosted by the South African Bibliographic and Information Network. The
study selected cases reported in the media to conduct follow-up interviews with a policeman, lawyer and
judge to discover the implications of the unavailability of required records in court cases. Furthermore,
access was given to three selected cases that were given high prole in the media and these cases were
analysed to nd out what the nal verdict in each case was.
Findings – Results of the study suggest that some criminal cases were withdrawn due to missing
dockets or cases not properly registered. In some instances, records were reconstructed, resulting in the
travesty of justice. The study concludes by arguing that if records are not accounted for, lawyers,
prosecutors and magistrates could dispute the authenticity of records. As a result, justice for victims
would be delayed and ultimately denied while the perpetrators are freed.
Research limitations/implications – The ndings and recommendations of this study may go a
long way in helping courts in South Africa to manage records properly to support the justice system.
Furthermore, the study is a useful compilation of the importance of missing records for social purposes.
Originality/value – In an attempt to show the role of records management in the administration of
justice in South Africa, this study used a triangulation of data collection tools. This is a new attempt,
especially in the South African context. Previous studies in southern Africa only looked at the
management of records in supporting justice system.
Keywords Justice, Records management, South Africa, Human rights, Record keeping
Paper type Research paper
1. Introduction
The provision of justice in any country is one of the fundamental principles to its
citizens. Saurombe (2014, p. 83) contends that access to a justice system is affected by
several factors such as costs; time; and legal, technological and cultural aspects. One
way of measuring the success of a justice system in a country is through the conviction
The current issue and full text archive of this journal is available on Emerald Insight at:
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RMJ
25,3
288
Received 3 June 2015
Revised 3 September 2015
Accepted 18 September 2015
RecordsManagement Journal
Vol.25 No. 3, 2015
pp.288-305
©Emerald Group Publishing Limited
0956-5698
DOI 10.1108/RMJ-06-2015-0023
rate (South African Law Commission, 2002). A justice system that consistently fails to
secure convictions will have little credibility to the citizens. Poor record-keeping can
contribute to a low conviction rate. According to Abioye (2014, p. 27), one other factor
that constitutes the bedrock upon which a justice system in any country can be built,
which is often overlooked, is record. Records are fundamental to the efcient and
effective operation of the legal system of a country and are perhaps even more crucial to
the administration of justice and the protection of citizens’ rights (Motsaathebe and
Mnjama, 2009a). Delays in registering cases, locating records and ling documentation
all have a direct impact on citizens and their legal rights. Therefore, the importance of
records management in supporting the justice system cannot be overemphasised.
The role of records management and its contribution to justice in society has become
a subject of discussion (Ngoepe et al., 2010). Indeed, records can serve as critical proof
that a particular action or transaction took place and can be admitted as evidence in a
court of law. Oslen (2013, p. 47), for example, posits that disempowered groups in society
struggling for justice may depend on records for recourse. Therefore, without reliable
and authentic records, the government cannot administer justice. In this regard, lack of
records may not only delay but also lead to miscarriage in the delivery of justice (Abioye,
2014,p.27;Barata et al., 2000). As a result, offenders can be set free, while the victims are
denied justice. For example, in 2006, a man who had been convicted of committing three
crimes and had received a 22-year jail sentence from a regional court in the Northern
Cape in South Africa was freed upon appeal because the record of trial proceedings had
been lost (South African Law Commission, 2002).
Abioye (2014, p. 27) views records and justice as inseparable. The inseparability of
the two concepts is manifested even in the origin of the term “record” itself. The term
record originally denotes the written documents kept by a court as evidence of its
proceedings (Kirkwood, 1996,p.1).Poyserand Milne (2011) posit that justice can never
be miscarriage-free, but records can mitigate the miscarriage of justice. This study
investigated the cases of “delayed and denied” justice that resulted from lack of or poor
record-keeping in the South African justice system with a view to encouraging proper
records management. A joint report by the World Bank and International Records
Management Trust (2002) indicates that the South African judicial system is
overburdened by the growing number and the complexity of litigations in the country.
This has also been compounded by large documentation quantities, the loss of
important documentation and subsequent delays caused by this. For example, if a case
le relating to a trial cannot be found, it becomes impossible for a judge or magistrate to
pass judgement, thus justice is denied or delayed to the person who lodged the case (the
plaintiff). The same applies if a police docket le is missing or incomplete. According to
a report by Yaso and Gordin (2009), at least 400 serious offenders in South Africa were
on the verge of walking out of jail in 2009 because the transcripts of their trials were
apparently lost by the Department of Justice or were inaccessible. As a result, the judges
set aside their convictions and sentences and set them free because their constitutional
right to appeal had been infringed. All prisoners try to appeal their convictions and
sentences before the Supreme Court of Appeal (SCA) or petition the SCA for leave to
appeal, but neither of these can be done without transcripts (Yaso and Gordin, 2009). For
the purpose of this study, miscarriage of justice refers to justice not served to the victim
while the perpetrators walk free (Poyser and Milne, 2011).
289
“Justice
delayed is
justice denied”
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