CHAPTER 1

ORIGIN OF THE INVESTIGATION

Introduction

1.1 During 1996 the Minister of Justice appointed a new project committee for the Commission’s investigation, on an ongoing basis, of all aspects of sentencing. He asked the committee to include in its enquiry the desirability of the legislative determination of minimum and maximum sentences. At meetings on 19 October 1996 and 10 January 1997 the committee approved the incorporation of this issue in the ambit of its task.

Background

1.2 Sentencing in South Africa has recently been the focus of much attention in the media. There has been an outcry from the community, both for more stringent punishment and that offenders should serve a more realistic portion of the sentences imposed by courts of law. The public also renewed claims for sentences which give expression to the desire for retribution and that concern for the offenders must give way to concern for the protection of the public. There is also general dissatisfaction with the leniency of sentences imposed by the courts for serious crimes.

1.3 The reasons for the public’s dissatisfaction with sentences imposed by the courts appear from various newspaper reports:

“The liberal press call it “Public Enemy No 1.” Many social sectors are calling to end the moratorium on the death penalty. The well-off and poor communities are scared. Blacks and whites are talking about crime. In the mean time the new government is trying to find a solution to the “crime” problem, advocating a lot of “tough” measures to deal with criminals and the apparent lawlessness that is taking over the country”. (Daniel Nina Mail and Guardian January 6-12 1995).

“People are being murdered, raped, abused and hacked, either through political, recreational or gangster violence. Chaos reigns without control.” (The Citizen Thursday, 26 October 1995).

“We will never be in a position to bring the epidemic of serious economic crime and corruption in South Africa to an end if we do not bring in new structures to deal with it”. (Pretoria News Thursday, October 26 1995).

“You all talk about the philosophy behind crime and give reasons for it. But I... (cannot use) reason or the constitution with a man holding a gun to my head”. (The Star October, 26 1995).

“Die straf wat opgelL word vir kindermolestering en kindermishandeling is absoluut onbevredigend. Daarom neem dit so drasties toe.” (Beeld Donderdag, 26 Oktober 1996).

“Tough jail sentences should be imposed on child abusers and this could be the only deterrent against child abuse.

We have told Mr Omar that the sentences meted out for offenders were too lenient and that new laws with stiffer sentences had to be introduced”. (Sowetan Friday, 10 November 1995).

“‘n Minimum vonnis en strawwer vonnisse kan vir kindermoleesterders ingestel word omdat huidige vonnisse nie ‘n voldoende afskrikmiddel vir die gemeenskap blyk te wees nie”. (Beeld Woensdag, 22 November 1995).

“One reads in the newspapers every day about aggrieved parties who more and more start taking the law into their own hands said Mr Justice T Grobbelaar. “Years ago the Appeal Court already warned that if serious crimes were not punished with severe sentences it would cause people to take the law into their own hands, at the end of the day leading to total chaos”. (Pretoria News Thursday, 23 November 1995).

“A judge yesterday sentenced three young men to an effective 60 years imprisonment for murdering and robbing a farmer near Witbank. It was tragic, Mr Justice T Grobbelaar said, that the slaughter of innocent people, robbery and the use of illegal fire arms has taken on epidemic proportions. An increasing number of people were taking the law into their own hands because they felt that the courts were not imposing strict enough sentences, he said. This could lead to chaos and anarchy. The public wanted to see that the sanctity of life was protected and respected, the judge added. We have noted before that judges are being forced to impose cricket score sentences because the sentences they impose are being ignored in prisons, life sentences being cut to 20 years, with a further maximum remission of ten years for good behaviour. In a leading article on August 17, we said some judges were imposing such severe sentences that the mind boggled.

We quoted the example of three armed robbers who were sentenced in the Rand Supreme Court to 135 years’ imprisonment for an attack on a security van during which two policemen were killed. The sentences will not run concurrently with sentences of more than a 100 years each, for similar crimes, imposed on the robbers by the Pretoria Supreme Court last year.

One of the robbers, previously sentenced to 105 years, will now serve a total of 240 years. The two others each sentenced to 140 years, will now serve a total 275 years. In theory of course, though not in practice .

A Correctional Services official told a court that a person with a life sentence would automatically be considered for parole after 20 years”. (The Citizen Saturday, 25 November 1995).

“Criminals tend to inhabit their own subculture, a culture which sanctions and reinforces violent behaviour. It is vital to establish a public campaign telling criminals that their behaviour will result in prosecution and conviction.

There is also a need for an educational campaign telling gangsters that gang membership frequently leads to serious injury and death. Such campaigns must be designed to sabotage the sense of omnipotence that characterises offenders and which encourages the belief that they will escape the consequences of their actions. This information, in combination with other measures, may lead to a substantial withdrawal from these violent subcultures.

The simpler the message, the greater the possibility that it will be imbibed. For example, messages such as “Individuals found guilty of rape will receive a minimum sentence of 15 years“ on billboards or pamphlet drops, clearly spell out the consequences of crime. One way to avoid leniency in sentencing is to have mandatory sentences for violent offences. Appropriate mandatory sentences give the public a sense that justice is being served. Mandatory sentences are also an explicit communication of the implications of engaging in violence - an important consideration as many criminals don’t assess the consequences of their violent conduct.” (Lloyd Vogelman “Campaign for a crime-free South Africa”).

1.4 From these excerpts it is clear that the public is dissatisfied with sentencing practices in South Africa, and aspects of this dissatisfaction are shared by members of the judiciary. Against this background the Commission is considering the question whether mandatory sentences for certain offences should be introduced in South Africa.

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