Sentencing in South Africa: Lacking in principle but delivering justice?

• Jurisdiction: South Africa
• Date: 19 August 2019
• Author: S S Terblanche
• Citation: (2005) 18 SACJ 187
• Pages: 187-202
• Published date: 19 August 2019

Sentencing in South Africa: Lacking

in principle but delivering justice?

SS TERBLANCHE

*

AND JULIAN V ROBERTS

**

A

BSTRACT

ABSTRACTA

The article considers the current state of sentencing in South Africa, based on the

judgment by the Supreme Cour t of Appeal in

S v Ferreira

, a case that attracted

considerable media attention. Having explained the principles on which the

various sentences in this case are based, two considerations are identif‌i ed which,

although not immediately evident, nevertheless prevent sentencing in South

Africa from being more principled and less intuitive. The f‌i rst consideration is the

role of the sentencing discretion, and the problems that our courts experience

in separating the fact-f‌i nding phase from the decision-making phase. The second

consideration is that most role players in the criminal justice system have been

schooled in the adversarial trial system, and have diff‌i culty dealing with the more

inquisitorial procedure required during sentencing. These considerations clearly

impacted upon this judgment as well. Finally, certain recommendations are made

as to how the basic principles of sentencing could be utilised to ensure more

principled sentencing outcomes.

Introduction

Early in 2004 the Supreme

Court

of Appeal upheld the appeal of Anieta

Court of Appeal upheld the appeal of Anieta Court

Ferreira, in a judgment that attracted substantial public interest and media

attention. The decision provides a useful point of departure for some

ref‌l ections on the current status quo with respect to sentencing in South

Africa. This article explores a number of general issues raised by

Ferreira’s

case, and locates the discussion within the context of international

developments in the f‌i eld of sentencing. The case is analysed in more detail,

and reference is made to the basic principles governing sentencing in South

Africa. The article concludes with a number of specif‌i c recommendations

to improve the sentencing process in this country.

The facts of

S v Ferreira

1

are brief‌l y set out in the following terms:

‘

The murder involved the killing of Cyril Parkman, a man then about 61 years

of age. The f‌i r st appellant, a woman of 39 at that time, had been living with him

in an intimate relationship for over seven years. He repeatedly and extensively

187

*

LLD (Unisa),

Professor of Law, University of South Africa

.

**

PhD (Toronto),

Reader in Criminology, University of Oxford

.

1

S v Ferreira

2004 (2) SACR 454 (SCA).

(2005) 18 SACJ 187

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188

SACJ •

(2005) 2

abused her mentally and physically. She eventually caused the other appellants,

young black men then aged 22 and 20 respectively, to kill him. They did. She paid

them for doing so

.’

2

Ms Ferreira (hereafter simply referred to as ‘the appellant’) had been

the victim of severe abuse. A reading of the facts

3

leaves one with much

sympathy for her and little, if any, for the deceased. When she became

involved with Parkman, she had already experienced a childhood and a

f‌i rst marriage characterised b y abuse. Initially the deceased was like a

father to her, and she came to love him. But soon this relationship also

became abusive. She was treated as an unpaid servant, had to address the

deceased as ‘Mr Parkman’, was punished like a child, and was sometimes

locked up in her room without food for periods of up to two weeks. The

physical abuse inf‌l icted upon her included threatening her with a f‌i rearm

and a knife, and once throttling her so badly that she needed corrective

throat surgery. Parkman constantly criticised and demeaned her, often in

public, and frequently in a sexually degrading manner. Over time, the abuse

intensif‌i ed. The worst (sexual) abuse occurred shortly before the murder.

4

The emotions that are awakened by these details add to any strain that the

sentencing system might be under already.

5

The sentences imposed

The appellant and her co-accused were tried in the Transvaal Provincial

Division of the High Court. Ferreira was sentenced by the tr ial judge,

sitting with two expert assessors,

6

to life imprisonment. This sentence will

shortly be explained, but was at least partly a result of specif‌i c legislation.

The appeal in the Supreme Court of Appeal was heard by three appellate

2

S v Ferreira

supra (n1) at [2].

3

S v Ferreira

supra (n1) at [14] et seq.

4

For the details, see

S v Ferreira

supra (n1) at [26].

5

It should be noted that the minority (Marais JA) concluded that the murder was a

‘contract killing for reward... That is, I believe, in the eyes of most reasonable people, an

abomination which is corrosive of the very foundations of justice and its administration’

(

S v Ferreira

(S v Ferreira(

supra (n1) at [70]). Whether this is an accurate description of this case, that

would be shared by most reasonable people, is debatable.

6

In the High Cour ts trials are generally conducted by a judge sitting with assessors skilled

in law, such as academics or retired lawyers. For more details on the functions of assessors

generally, see J Kriegler and A Kruger Hiemstra

Suid-Afrikaanse Strafproses

6ed (2002)

365-6; E du Toit et al

Commentary on the Criminal Procedure Act

(1987) 21–5. The use

Commentary on the Criminal Procedure Act (1987) 21–5. The use Commentary on the Criminal Procedure Act

of expert assessors to assist the judge developed mainly with respect to very serious

offences, where the death penalty was a possibility. A slowly developing system of lay

assessors was introduced in 1992 for the lower courts (district) magistrates’ courts, and

there are plans to extend this to the regional courts. In these cases the assessor s (one

or two per case) are lay people, the idea being to bring justice closer to the public. See,

in general, MM Watney ‘Assessore in die laerhof’ (1992) 55

THRHR

465-8; Kriegler and

Kruger op cit 367-75.

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