JOHANNESBURG – A growing trend of settling criminal cases outside of court is raising serious questions about fairness and equality within the South African justice system. While intended to alleviate court backlogs and reduce costs for the state, these out-of-court settlements, often brokered by prosecutors in court hallways, are sparking concerns that the wealthy can effectively "buy" their way out of criminal convictions, while the less privileged are left to navigate the full force of the law.
Statistics from the National Prosecuting Authority (NPA) reveal the extent of this practice, with approximately 150,000 cases settled out of court in a single year. This surge in alternative dispute resolution mechanisms (ADRMs) in criminal matters has prompted legal experts to warn of undermined justice, potential manipulation, and coercion, particularly in the absence of clear legislative guidelines.
However, critics argue that this system creates a "perverse incentive," where money becomes the deciding factor, allowing those with resources to avoid a trial and a criminal record. This raises concerns about whether justice is truly being served, or if it is simply becoming another commodity available to the highest bidder.
The potential for abuse was starkly illustrated in the Randburg magistrate's court this week. Zandile Mbazima, an unemployed single mother, found herself feeling pressured to accept an out-of-court settlement after being brutally assaulted following a minor car accident.
Mbazima recounted the incident, which occurred in February when she drove into the back of Candice Adams's car. Adams allegedly confronted Mbazima, pulling her out of her car and repeatedly punching her in the face. The assault was captured on cellphone footage by a witness, leading to Adams's arrest.
However, instead of proceeding to trial, Mbazima was presented with a proposed settlement: a R12,500 payment, an apology from Adams, and an undertaking to undergo an anger management programme. Mbazima said she felt "backed into a corner" by Adams's "aggressive" legal team.
Adding to her unease, Mbazima said the senior prosecutor warned her that there was no guarantee of a guilty verdict if she pursued the charges. Even if Adams were convicted, the prosecutor allegedly stated, she was unlikely to be imprisoned, and any fine would go to the state, not to Mbazima.
The case highlights the potential for victims to feel pressured into accepting settlements that may not adequately address the harm they have suffered. It also raises questions about the role of prosecutors in these negotiations and whether they are adequately protecting the interests of victims.
Professor Lukas Muntingh, co-founder and project co-ordinator of Africa Criminal Justice Reform (ACJR), is a vocal critic of the unregulated use of ADRMs in criminal cases. He argues that there is no legal basis for these mechanisms, which "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."
Muntingh also raised concerns about the lack of a central register of mediated cases, which could allow serial offenders to go undetected if they repeat crimes in different regions. He cited a 2019 road rage case in Emalahleni, where three men accused of assaulting a couple allegedly bought their way out of prosecution by paying the victims R5.4m to withdraw charges.
According to the NPA's annual report, 146,993 ADRM cases were registered nationally in 2019/20. Of these, 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 cases are being handled in a legislative vacuum. The risk for abuse and bribes is massive," Muntingh warned.
Lisa Vetten, a gender specialist on violence against women at the Commission for Gender Equality, echoed these concerns, stating that mediation is being used to reduce pressure on the courts but needs 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," Vetten 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."
Wits University law professor Peter Jordi also highlighted the potential for manipulation and coercion within the ADMR system, arguing that it favours offenders, whose cause is often helped by court delays and missing dockets.
NPA spokesperson Bulelwa Makeke defended the use of mediation in certain criminal matters, stating that it has "always been available." She added that "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."
Deepna Desai, an attorney with a special interest in mediation, said ADRM offered potential advantages such as allowing injured parties to obtain closure. However, she added that "the problem is that prosecutors don't know what they are doing or understand the process."
The South African Law Reform Commission is currently conducting a review of the criminal justice system, including the issue of mediation in criminal cases. The commission proposes providing for the legislative regulation of conditional withdrawals of prosecution, noting that 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."
As the debate over out-of-court settlements intensifies, it is clear that a careful balance must be struck between the need to alleviate court backlogs and the fundamental principles of justice, equality, and fairness. Without clear regulations and oversight, there is a risk that the South African criminal justice system could become a two-tiered system, where justice is not blind, but rather, dependent on the size of one's wallet.
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