Index reveals SA overcriminalised but lawless

Free Market Foundation (FMF) head of policy, Martin van Staden.

Free Market Foundation (FMF) head of policy, Martin van Staden.

Published Mar 21, 2024


The latest Free Market Foundation’s (FMF) Section 12 Criminalisation Index has found that South Africa is well on the road to overcriminalisation and targeting ordinary citizens.

The initiative took into consideration 12 portfolios: health, mineral resources and energy; communications and digital technologies; land reform and rural development; trade, industry, and competition; labour and employment, as well as transport.

This was done to comprehensively quantify the extent of criminalisation that exists in South Africa’s statutory, regulatory, and judicial law.

The initial findings have revealed that there were as many as 169 criminal offences, 64 of which were regarded as being inappropriate within criminal law, necessitating the immediate decriminalisation of the offences or for the matters to rather be moved into civil matters.

It also found an additional 29 of the 169 offences were somewhat inappropriate, 50 being somewhat appropriate, and only 26 kinds of conduct being appropriately listed as criminal.

Some of the inappropriate offences include not lodging a retention permit with a government office within 60 days which could land residents in prison for up to 10 years with a fine of R500 000.

Showing or distributing a film of a video game without it being registered with the Films and Publications Board could land a person in prison for up to six months or a fine of up to R150 000.

As well as “inconveniencing” a fellow passenger on public transport, which has a prison sentence of up to three months or a fine of up to R100 000.

“Violent crime in South Africa is out of control, with the South African Police Service’s latest statistics indicating that there are 86 murders, and 136 reported rapes daily. The prosecution rate for these offences is unacceptably low, and South Africa’s prisons are overfull,” said FMF head of policy, Martin van Staden.

“Despite this travesty of justice, police, prosecutorial, and prison resources are still dedicated to combating an array of conduct and activities that should not be classified as “criminal” in the first place.

“While you are being hijacked at gunpoint at an intersection, the police might be around the corner arresting an amateur filmmaker for showing his recordings without being registered with the Films and Publications Board,” Van Staden said.

As things stand, Van Staden said interested parties had to take on the daunting task of finding offences scattered all throughout national, provincial, and municipal legal instruments.

“The result of the status quo is that most South Africans simply do not know how criminalised we are. Everyday, seemingly innocuous things that we might do could very well be a crime in the eyes of the law. Our index aims to ensure that South African society can get a better grip of whether the scope of our criminal law is appropriate or not,” he said.

“We therefore call upon Parliament to adopt a Criminal Code that will group all offences in South Africa, whether found in regulation, legislation, municipal by-laws, judicial pronouncements or the common law, in one easily accessible place,” Van Staden said.