Recent Case: Sentencing
| Jurisdiction | South Africa |
| Date | 16 August 2019 |
| Citation | (2018) 31 SACJ 465 |
| Pages | 465-482 |
| Published date | 16 August 2019 |
| Author | Stephan Terblanche |
Sentencing
STEPHAN TERBLANCHE
University of South Africa
1 General principles of sentencing
1.1 Purposes of punishment
The basic principles of sentencing remain the balanci ng of the
seriousness of the crime, the person of t he offender and the interests
of society, as well as ‘the deterrent, preventative, retributive and …
rehabilitative pur poses of punish ment’ (S v De Besch 2018 (2) SACR 22
(NCK) at para [19]; cf also S v Miller 2018 (2) SACR 75 (WCC) at paras
[5]-[6]; S v Xaba 2018 (2) SACR 387 (KZP) at para [10]). In terms of
the current high court pr actice, it would normally be a misdirec tion
should the trial court not consider them.
In S v De Besch 2018 (2) SACR 22 (NCK) at para [19] the court
remarked that,
‘The appellant has on previous occasions been given short imprisonment
terms which appear to have failed to rehabilitate him. From a penological
point of view, this is a text-book case that shows that short terms of
imprisonment are not always benecial and may not have any rehabilitative
effect. On the contrary, in this case the short terms of imprisonment seem to
have turned the appellant into a hardened criminal.’
It is unclear why the court would assume that the short ter ms of
imprisonment had been imposed i n order to rehabilitate the offender.
Some judicial ofcers remain satis ed that imprisonment in any form,
whether for short or for longer terms, has some potential to rehabilitate
offenders. The fact is that rehabilitation is a most u nlikely consequence
of imprisonment. This do es not mean that it never happens, but the
possibility remain s remote and unknown at the time of sentencing.
No court of justice should use an ideal so frai l as a consideration
when imposing imprisonment (cf P Muthaphuli and SS Terblanche ‘A
penological perspective on rehabilitation as a sentencing aim’ (2017)
30 Acta Criminologica 1 6-3 2).
Deterrence is another controversial object of punishment.
At present, courts frequently clai m to be sending a message to
society, or people of the same inclination as the offender, with
their sentences. This matter is con sidered below at Deterrence
and public perceptions.
Recent cases 465
(2018) 31 SACJ 465
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1.2 Personal circumstances of the offender
The court in S v Miller 2018 (2) SACR 75 (WCC) at para [167] repeated
that, in serious cases, the aspec ts of retribution and deterrence come
to the fore. When this is the case, the per sonal circumstances of t he
offender will often have a reduced effect, if any, on the eventual
sentence. (See also S v De Besch 2018 (2) SACR 22 (NCK) at para [19]:
the seriousness of the crime (or its aggravating features) far outweigh
the personal circums tances of the offender.)
In considering the personal circ umstances of the dif ferent offenders
in S v Miller supra, Gamble J repeatedly assessed whether such
circumstances af fected their ‘moral blameworthiness’ (for the facts see
Possession of abalone for commercial purp oses below). For example,
although the offenders were not the kingpins of the aba lone export
business, they were ‘middle management’, providing the ‘planning,
nancing, processing, packaging, storage and transpor tation of these
vast quantities of abalone to the preferred destinations’ wit hout which
‘the illegal poachers and divers responsible for the har vesting of the
abalone would have no market for their bounty’ (at para [102]). They
did so for their own personal nancial ga in (‘greed’) and therefore
‘also attract a high degree of moral blamewor thiness’ (at para [102]).
As another example, specically in con nection with accused no 4,
Gamble J held that his ‘moral blameworthiness i s high and that he is
deserving of a heavy sentence’ (at para [154]). This means that other
personal factors, such as his age (43 years old), that he is married and
has children, their schooli ng, that his wife is chronically i ll, that he is
not healthy himself and that he grew up under d ifcult circums tances
on the Cape Flats (at paras [129]-[134]), do not appear to have had any
effect on the sentence. Still, the court took notice of thes e facts.
1.3 Deterrence and public perceptions
Courts frequently refer to the message that t hey send to society with
their sentences. This happened in S v Scholtz 2018 (2) SACR 526 (SCA),
including (at para [199]), with a quotation from S v Shaik 2007 (1)
SACR 247 (SCA) at para [223]: ‘Courts must send out an unequivocal
message that corruption will not be tolerated and t hat punishment
will be appropriately severe.’ In Scholtz at para [211], the court cross-
references this quotation with one of its own: ‘[I]t is necessary for an
unequivocal message to be sent out that corruption on the par t of
politicians, especially those holdi ng high ofce, will not be tolerated,
and that punishment … will b e severe.’
Other recent examples include S v Xaba 2018 (2) SACR 387 (KZP)
at para [26] (‘A strong deterrent message must go out to those who
wish to take the law into their own hands, that vigi lantism will not be
466 SACJ . (2018) 3
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