The use of impact statements, minimum sentences and victims’ privacy interests : a therapeutic exploration

• Author: Lize-Mari Mitchell,Annette Van der Merwe
• Published date: 01 June 2020
• DOI: 10.17159/2225-7160/2020/v53a1
• Pages: 1-18
• Date: 01 June 2020

Use of impact statements, minimum sentences and victims’ privacy interests 1

The use of impact statements, minimum

sentences and victims’ privacy interests: a

therapeutic exploration*

Annette van der Merwe

BPROC (UP), LLB (UNISA), LLM (UP), PhD (RHODES))

Professor, School of Law, University of Limpopo

Lize-Mari Mitchell

LLB (NWU), LLM (NWU), HONS (PSYC) (UNISA)

Lecturer, School of Law, University of Limpopo

SUMMARY

By submitting or presenting an impact statement, reflecting on the

different kinds of harm caused by the commission of a crime against

them, victims are also allowed the opportunity to participate in criminal

justice procedures. In South Africa, its use has been endorsed through

appellate judgments, legislation, and a Victims’ Charter. Though the

precise role, value, weight and inconsistent use of victim impact

statements have often been debated, no possible human right violation

had, until recently, been highlighted. However, in the axe-murder case of

S v van Breda (SS17/16) [2018] ZAWCHC 87 (7 June 2018)) the prosecution

indicated that, in protecting the right to privacy of the surviving victim, no

impact statement would be presented during sentencing. This paper

explores the argument raised by the state and, in the event of an impact

statement infringing on an adult victim’s privacy, what the likely

psychological consequences are. It is contended that, while it is widely

used, and often considered essential, as one factor to determine the

absence or existence of substantial and compelling circumstances, it also

reveals extremely intimate detail about victims and may be perceived to

infringe on their privacy. Victims should at all times be informed of the

route this information might take into not only the public domain, but also

more pertinently the divulgence to the accused per se. They should be

empowered to take an informed decision in this regard. Based on an

individualistic approach, the particular victim’s well-being should be

respected and advanced.

How to cite: Van der Merwe & Mitchell ‘The use of impact statements, minimum sentences and victims’

privacy interests: a therapeutic exploration’ 2020 De Jure Law Journal 1-18

http://dx.doi.org/10.17159/2225-7160/2020/v53a1

* This article is based on a paper presented at the Annual Conference of the

European Association of Psychology and Law, Santiago de Compostela,

Spain, 17 – 20 July 2019 titled “The use of impact statements and victims’

privacy interests”.

2 2020 De Jure Law Journal

1Introduction

The prosecution has always had the option, as part of relevant

information and evidence during sentencing procedures, to submit a

victim impact statement (hereafter VIS).1 This practice has, in particular,

become relevant in inter-personal violent crimes, such as in rape, murder

and attempted murder. In recent years precedent has encouraged,2 and

indeed often required,3 the use of victim impact statements during

sentencing, and in 2010, it was statutorily introduced in matters

involving child offenders.4 The crime victim’s right to provide

information to the sentencing court is also highlighted in the Service

Charter for Victims of Crime in South Africa 2007.5

Though the precise role, value, weight and inconsistent use of victim

impact statements have often been debated,6 no possible human right

violation had, until recently, been highlighted. However, in the axe-

murder case of S v van Breda,7 the prosecution indicated that, in

protecting the right to privacy of the surviving victim, no impact

statement would be presented during sentencing. Marli van Breda

1 S 274 of the Criminal Procedure Act 51 of 1977 (hereafter CPA). Terblanche

Guide to Sentencing in South Africa (2016) 123. KrugerHiemstra’s Criminal

Procedure (2019) 28-2.

2S v Vilakazi 2009 1 SACR 552 (SCA) par 21; S v Matyityi 2011 1 SACR 40

(SCA) par 16; S v v PB 2013 (2) SACR 533 (SCA); S v Ganga 2016 1 SACR 600

(WCC) para 52.

3Rammoko v Director of Public Prosecutions 2003 1 SACR 200 (SCA) 205e –

since the matter involved an appeal against the imposition of life

imprisonment, the case was referred back to the trial court to obtain a

victim impact statement. The court held that such omission led to a risk for

the accused where s 51(1) of the Criminal Law Amendment Act 105 of 1997

(CLAA) applied in that: “… substantial and compelling circumstances are,

on inadequate evidence, held to be absent. At the same time the

community is entitled to expect that an offender will not escape life

imprisonment – which has been prescribed for a very specific reason –

simply because such circumstances are, unwarrantedly, held to be

present.”; S v Mhlongo 2016 2 SACR 611 (SCA) par 23 – Mocumie JA held

that the absence of a victim impact statement about the harm suffered by a

27-year-old rape victim (after having been abducted and subjected to a

night of terror (para 21)), was a cause of concern (para 22).

4 S 70 (2) of Child Justice Act 75 of 2008 (hereafter CJA) provides as follows:

“The prosecutor may, when adducing evidence or addressing the court on

sentence, consider the interests of a victim of the offence and the impact of

the crime on the victim, and, where practicable, furnish the child justice

court with a victim impact statement provided for in subsection (1)”.

5 Clause 2 (see http://www.justice.gov.za/VC/VCdocs.htm (accessed 2019-10-

28).

6 Van der Merwe “A critical evaluation of the use of victim impact statements

in child sexual abuse cases” 2006 De Jure 422 – 435. Also S v Ganga supra.

7 SS17/16 2018 ZAWCHC 87 (7 June 2018)). Van Breda was convicted on

three counts of murder and one count of attempted murder. Life

imprisonment was imposed for all three murder accounts (his parents and

brother) and 15 years for the attempted murder of his sister. She had

several wounds directed at the part of the human body with a high

mortality rate (para 279) but survived against all expectations (para 298).