The maximum length of imprisonment imposed by South African courts: Life, dangerous criminal or 60 years?

• Jurisdiction: South Africa
• Citation: (2002) 15 SACJ 207
• Published date: 24 May 2019
• Author: Peet M Bekker
• Pages: 207-224
• Date: 24 May 2019

The maximum length of imprisonment

imposed by South African courts:

life, dangerous criminal or 60 years?

PEET M BEKKER*

Introduction

There are many reasons for discussing the maximum length of imprisonment

in South Africa today. The abolition of the death penalty in the light of the

new South African Constitution' by the new Constitutional Court

2

has led to

a reassessment of the maximum length of imprisonment

3

in South Africa

where, until fairly recently, imprisonment in excess of twenty-five years was

as a matter of sentencing principle, imposed only in cases of exceptional

gravity.

4

Further reasons for this reassessment and the imposition of longer

sentences, are the courts' reaction to what is perceived as an increase in

violent crime,

5

and a crime wave that is sweeping the country.

6

It has been stated that the 'development of our law in this regard (ie the

imposition of longer sentences than in the past) is not yet complete, but,

according to one lawyer, it can only be hoped that our penal system will not

follow the American example in this regard' with their massive sentences.

?

* BA (Law); LLB (Pret); LLD (Unisa),

Professor; Department of Criminal & Procedural Law,

University of South Africa

1





The Constitution of the Republic of South Africa Act, 200 of 1993 (the interim constitution) and

the Constitution of the Republic of South Africa Act, 108 of 1996 (the constitution.)

2

S v Makwanyana

1995 (2) SACR 1 (CC)

3

S v Schoeman

1995 (1) SACR 423 CI) at 426e—L

4

R v Mzwakala

1957 (4) SA 273 (A) at 278D—E (based on the fact that life imprisonment was

then considered to be twenty years). See also

S v Whitehead

1970 (4) SA 424 (A) at 438F—H;

S

v Skenjana

1985 (3) SA 51 (A) at 55H—I;

S v M1993

(1) SACR 126 (A) at 134a—i and

S v Nkosi

1993 (1) SACR 709 (A) at 717b—c. And see the American Bar Association Standards Relating to

Sentencing Alternatives and Procedures 56, 59 (1968): 'A term of 25 years should be the

"outside limit for extreme cases".'

5

S v Mhlakaza

1997 (1) SACR 515 (SCA) at 523f—g;

S v Kgampe

1998 (2) SACR 664 (NC) at 669;

S v Smith

1996 (1) SACR 250 (E) at 256.

6

S

v Maseko

1998 (1) SACR 451 CO. 'Geweldsmisdade het aansienlik toegeneem en moord en

doodslag is aan die orde van die dag':

S v Schoeman

1995(1) SACR 423C0 at 426f-g.

7

SS Terblanche

The guide to sentencing in South Africa

(1999) 254.

207

(2002) 15 SACJ 207

© Juta and Company (Pty) Ltd

208



SACJ •

(2002) 15 •

SAS

The maximum length of incarceration in the Republic of South

Africa

Imprisonment

per se

and the aims of punishment

In South Africa it is trite law that the main purposes of punishment

8

are

deterrent, preventive, reformative and retributive.

9

As was said in

S v

Whitehead:

1°

'When assessing an appropriate sentence it is necessary to have regard, not only to

the main purposes of punishment—viz deterrent, preventive, reformative and

retributive: see

R v Swanepoel 1945

AD 444 at 455 — but also both to the individual

concerned and the circumstances of his crime.'

And as is stated in

S

v Zinn:

11

'What has to be considered is the triad consisting of the crime, the offender, and the

interests of society.'

Although the United States, and to a lesser extent the United Kingdom, has

seen a swing away from the rehabilitative ideal towards either a retributive

approach or a deterrent/incapacitative approach,

12

it has been stated by the

Appellate Division

13

that

'(d)eterrence has been described as the "essential", "all important", "paramount"

and "universally admitted" object of punishment ... The other objects are

accessory. The aspect of retribution is considered in modern times to be of lesser

importance— see

R v Karg

1962(1) SA 231(A)

per

Schreiner JA ... (and that) (i)t is

therefore not surprising that ... Schreiner JA observed that, while the deterrent

effect of punishment has remained as important as ever, "the retributive aspect has

tended to yield ground to the aspects of prevention and correction".'

14

But the elements of deterrence and retribution come strongly to the fore in

cases of armed robbery with resultant loss of life. In such cases any possibility

of rehabilitation and the personal circumstances of the offender are

overshadowed by the elements of deterrence and retribution, as well as

the seriousness of certain offences and the interest of the community.

15

In

8

In this discussion I am not concerned with what the 'correct' appellation should be: purposes,

aims or elements of punishment:

S v Mafu

1992(2) SACR 494 (A) at 497b-d;

S v De Kock

1997

(2) SACR 171(T) at 191h—i. See, also, Stephan Terblanche Die oogmerk van vergelding uit die

oogpunt van die Konstitusionele Hof (1996) 5

THRHR

267 at 270-1.

9

S v Tcoeib

1991 2 SACR 627 (Nm) at 630d.

10

1970 (4) SA 424 (A) at 436F.

11

1969 (2) SA 537(A) at 540G.

12

Andrew Skeen 'Effective judicial thundering from up on high or a mere brutum fulmen?

Deterrent sentences in criminal cases' (1998) 11

SACJ

242 at 243.

13

As the Supreme Court of Appeal was then known.

14

For a good summary of these cases, see

S v De Kock

1997

(2) SACR 171 (T) at 188h-189 e.

15

S

v Siluale

1999

(2) SACR 102 (SCA) at 106a—c;

S v Maseko

1998 (1) SACR 451 (T) at 460d—g;

S v

Nkosi

1993 (1) SACR 709 (A) at 717d-e.

© Juta and Company (Pty) Ltd