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After receiving numerous inquiries concerning convicted criminals in South Africa receiving inconsistent sentencing, and at times, meagre stretches of jail time for serious crimes—the Newcastillian – Online News speaks with Newcastle based Civil Law Attorney Andre Groenewald to establish why.
To begin, how does the judiciary system work in South Africa when sentencing a person found guilty of a crime and what does the court look at when handing down sentencing?
“In South Africa, sentencing is considered the primary prerogative of trial courts, and they enjoy wide discretion to determine the type and severity of a sentence on a case-by-case basis. In doing so, they follow judge-made, general sentencing principles known as the “triad of Zinn,” states Groenewald.
This is named after the 1969 case of S v. Zinn, where the Supreme Court, Appellate Division, stated the following with regards to imposing a sentence: “[w]hat has to be considered is the triad consisting of the crime, the offender and the interests of society.” Additionally, this gave rise to three general guides in developing a sentence:
- The seriousness of the offence
- The personal circumstances of the offender
- Public interest
These factors must be considered equally, and one should not be heavily relied upon over the others.
While these are legitimate points, the question remains, why do certain suspects receive lighter sentences than others found guilty of a similar crime?
Groenewald points out, South Africa’s sentencing regime rests on a “fundamental premise that the trial judge [is] vested with the discretion to decide on a suitable sentence.”
He adds, “For serious offences (such as murder, rape, or robbery) there are mandatory minimum sentences determined by legislation. For example, the least severe mandatory sentence is 15 years imprisonment, rising to 20 and 25 years for offenders with previous convictions for the same offence.”
Furthermore, the Newcastle-based attorney says, the mandatory sentencing provisions contain a clause allowing for judicial discretion: courts may impose a lesser sentence in cases in which “substantial and compelling circumstances exist that justify the imposition of a lesser sentence.”
Judges must then provide their reasons for imposing a sentence below the minimum. “Our legal system is 369 years old. We follow case law as a source of law. This doctrine of stare decisis (the principle of judicial precedents) requires that our courts will always follow previous court decisions issued on cases with materially similar facts. Our courts are therefore bound by their own previous rulings on similar cases made in the past.”
Additionally, suppose a sentencing judge believes that exercising his or her discretion is called for when considering “substantial and compelling circumstances”. In that case, they may choose to consider and adopt the sentencing precedents made in similar past cases.
When comparing sentencing in South Africa to that of a first-world country, Groenewald explains, “Our laws (including guidelines on sentencing) have been uniquely developed by us, for us, to deal with the particular socio-economic circumstances in this country.” He stresses, “In South Africa, our penalties for serious transgressions are based on mandatory minimum sentences, rather than mandatory sentences as is the case in some other first-world countries. These penalties were introduced in large measure in response to rising crime rates.”
Emphasising that our public interest considerations in SA differ from those in first-world countries due to our unique circumstances, the traditional purposes of punishment (deterrence, rehabilitation, protection, and retribution) form part and parcel of our sentencing considerations. “Society may, for example, in this country expect that an offender who has committed a serious crime be punished, and that he be given a long period of incarceration which will protect the community, or if the offence is prevalent, insist that a greater-than-usual punishment is appropriate as a deterrent,” states Groenewald.
In conclusion, Groenewald explains that sentencing in first world-countries (such as Sweden) may differ substantially for the very same offender. “They may place more emphasis on the rehabilitation side of things, rather than retribution as punishment. Their public interest considerations may, for example, also rather call for restitution, or the payment of compensation that can help re-establish peace and security to society, instead of direct imprisonment.”
With Andre Groenewald casting light on our judicial system, what are your thoughts? Share your views with us in the comment section below.