Justice Sector and the Rule of Law - AfriMAP

his or her continued incarceration. The High Court upholds the right to habeas corpus routinely.In relation to section 42 of the Constitution, the High Court has also said that the ‘forty-eighthour rule is more than a right or ideal. It is a measure of the efficiency of the attorney-general’soffice and the Ministries of Home Affairs and Justice’. 433 The court has expressed the same viewin the case of Re Leveleve. 434 However, the right of habeas corpus is seldom sought, given the lowlevels of rights awareness in the country, and the cost of access to the High Court.Abuse of process can also be controlled through an appeals process that provides an effectiveremedy for the abuse. The Courts Act (Act 1 of 1958) guarantees every person convicted bya magistrates’ court the right to appeal against his or her conviction if he or she had pleaded notguilty to the relevant charge. Such a person may also appeal against his or her sentence. On theother hand, a person convicted of an offence after pleading guilty is entitled to appeal only againsthis or her sentence. 435 In criminal matters the right to appeal to the Supreme Court is availableto any person aggrieved by a final judgment of the High Court in its original jurisdiction. 436 Aperson can also appeal to the Supreme Court of Appeal against a decision by the High Court inits appellate capacity. 437 The right of appeal is also available to the director of public prosecutions,but he or she is limited to appealing only on points of law and not fact. In practice, the systems ofappeals are limited in their effectiveness due to low levels of awareness of rights among convictedpeople, their inadequate access to legal representation, inefficiencies in the processing of courtrecords and insufficient numbers of judicial officers in appeal courts. In the 2004 National Crime Victimisation Survey, 85.5 per cent of respondents interviewed forthe survey indicated satisfaction with the way the courts sentence perpetrators of crime. 59.7per cent of respondents expressed confidence in sentencing because they believed that courtshand down sentences which fit the crime. 438 However, sentences imposed in cases involvinggender-based violence have often been criticised, mainly by human rights NGOs, for being toolenient and failing to take full account of the gravity of gender-based violence. The Women andLaw in Southern Africa Research and Education Trust has observed that, even though the PenalCode provides maximum sentence of death for rape, in appeal cases decided by the High Courtbetween 1996 and 1998, men found guilty of rape were sentenced to no more than six years’imprisonment. 439There have been efforts to reform the sentencing regime in order to make it more appropriateto the demands of justice. A recent example of this is the amendment of section 34 of theCorrupt Practices Act, which originally provided that any person convicted of an offence underthe act would be subject to a minimum sentence of five years’ imprisonment. The amendment