Special Issue: Sentencing in South Africa: Dominated by minimum sentences

• Author: Terblanche, S.S.
• Published date: 06 July 2020
• Pages: 4-22
• Citation: (2020) 33 SACJ 4
• Date: 06 July 2020

Sentencing in South Africa:

Dominated by minimum

sentences

SS TERBLANCHE*

ABSTRACT

South Africa h as a high crime rate and one of the highest pris on populations

in the world. This ar ticle describes how the countr y deals with these

issues as far as the sentenci ng of offenders is concerned. It considers the

jurisdiction of t he courts and the basic pri nciples in terms of which these

courts determ ine the appropriate sentence to impose i n a specic case.

These principles are gener ally considered trite, and thei r application is

guarded over by an active system of rev iew and appeal by higher courts.

However, these principles have also been deemed insu fcient by the South

African Law Com mission, at its major investigation into sentencing in 200 0.

None of the recommendations of t he Commission has been i mplemented.

Instead, mini mum sentences are dominat ing the crimin al justice system at

present and, despite substant ial criticism at a foundationa l level, there is no

indication that a more pri ncipled approach to sentencing is in the pipeline.

1 Introduction

The Republic of South Africa is t he 25th largest country in the world1 –

it covers the whole of the southern tip of Africa.2 South A frica is home

to about 57 million people, which makes it the 24th most populous

country in the world.3 Arguably, South Afr ica is best known in the

rest of the world for three reasons: the despised system of apartheid;

Nelson Mandela; and the FIFA soccer world cup in 2010. When it

comes to criminal just ice, it is notorious as a country with a very high

crime rate and one of the highest prison popul ations in the world.

This essay provides a brief account of the country ’s criminal justice

system, to serve as a platform for a more detailed account of its

sentencing laws and practices. In turn, th is serves as a foundation for

* LLB LLD (Unis a), Professor of Law, University of South A frica.

1 It is roughly 1,220,00 0 km2. See Encyclopae dia Britann ica ‘South Afric a,’ available

at www.britannica.com/ place/South-Af rica, accessed on 7 January 2020.

2 Cape Town, in the south-west of the cou ntry and situated at ab out 34° South, is

at the same latitude a s (in the Southern Hemi sphere) Sydney, Australia; Buenos

Aires, Arge ntina; Santiago, Chi le; and (in the Norther n Hemisphere) Los Angeles

and Atlanta, USA ; Beirut, Lebanon ; Hiroshima, Japa n.

3 Ibid.

4

(2020) 33 SACJ 4

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an assessment of the biggest challenges faced by these sentencing laws

and practices. Finally, consideration is given to sentencing reforms

over the last few decades, both as far as such reforms have been

implemented and proposed.

2 A brief history of the criminal justice system

Pre-colonially, the southern part s of Africa were characteri sed by

mostly nomadic tribes of people, with il l-dened and mostly local

forms of justice. The Dutch arrived in 1652, establishing a refresh ment

station for ships between Europe and the Far East, situated at the foot

of ‘Tafelberg’ (Table Mountain). Their inuence on criminal justice was

quite limited, and it took a long time before they star ted inuencing the

hinterland of Cape Town. Where they did have an effect, the system of

justice was as crude and ruth less as in the rest of continental Europe.4

The English colonial powers took over from the Dutch in 1806.5

It did not take long before they started introducing English cr iminal

procedures.6 Substantive crim inal law remained Roman-Dutch law and

is largely in place to this day.7 The early 1800s were also characteristic

of the time when the European sett lers came into increasing contact

with African s, and a protracted series of milita ry skirmi shes took

place in what is today the Eastern Cape. By thi s time the eastern

parts of South A frica were largely settled by different nations speak ing

Nguni languages, such as the X hosa and the Zulu. Sotho and Tswana

peoples lived further inl and. In all these societies, which tended to be

organised in local tr ibes, often under the leadership of local chiefs,

traditional justice systems accounted for law and order in everyday

disputes.8

Under European inuence, increasing formalis ation of criminal

processes eventually enveloped the whole of South Africa. Cri minal

procedure was heavily inuenced by English law and legislated

countrywide i n the form of a succession of Criminal Procedure Act s,

eventually leading to the current Cr iminal Procedure Act 51 of 1977.

All these acts have been amended on a regu lar basis, and the current

4 Cf CH van Zyl ‘The Batavi an and the Cape Plakaten’ (1908) 25 SALJ 246 ; CG Botha

‘Crimina l procedure at the Cape during the 17th and 18th Centur ies’ (1915) 32 SALJ

322.

5 AJ Middleton Judicial Con siderations Co ncerning the Imposition of Cr iminal

Punishment: A Histor ical Survey LLD (Unisa) (1983) 522.

6 LF van Huyssteen ‘Ka apse strafregspra ak vanaf ongeveer 1807–1827’ (1989) 2 SACJ

286-298; H R Hahlo & E Kahn T he Union of South Africa: T he Developme nt of its

Laws and Constitut ion (1960) 207.

7 Cf CR Snyman Criminal L aw 6ed (2014) 6 –7.

8 TW Bennet t Customary Law in S outh Africa (2004) ch 2, ch 4, 161–168.

Sentencing in South Africa:

Dominated by minimum sentences 5

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