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• Current South African Law
• International Perspective
• Proposals

9. SENTENCING

9.1 Sentencing is linked to diversion as well as to the principles and values underlying a juvenile justice system. These include restorative justice, proportionality and limitations on the restriction of liberty.

Current South African law

(i) Constitutional framework

9.2 The 1996 Constitution mirrors international law - section 28 contains the presumption against institutionalisation referred to above, and at the same time, holds that a detained child should be "treated in a manner, and kept in conditions, that take account of the child's age."

9.3 The most prevalent sentence for juvenile offenders, whipping, was abolished by the South African Constitutional Court in S v Williams.^[82] Prior to its abolition, whippings were imposed on approximately 35 000 child offenders annually. Although it was argued that whipping served as a deterrent, the court held that society’s greater concern was with the form of punishment, which must be consistent with the values in the Constitution. Although it was mooted that the abolition of whipping would lead to an increase in imprisonment for children, the court, after considering current sentencing options and trends in juvenile justice, and penology, endorsed the development of alternative sentence and diversion possibilities, citing examples of a non-custodial nature.^[83]

9.4 The Bill of Rights in the 1996 Constitution and the Constitutional Court's decision in S v Williams suggest that South Africa's juvenile justice legislation should incorporate the accepted international standards, as well as such further rules and limitations as to ensure effective implementation of the international standards.

9.5 Until now, there has been no distinctive approach to juvenile sentencing. As a general principle, juveniles are sentenced more leniently than are adults.^[84]

(ii) Current sentencing options in the Criminal Procedure Act, 51 of 1977, as amended

9.6 The Criminal Procedure Act provides for a range of sentences which may be imposed upon children (or those who, at the time of commission of the offence, were below the age of eighteen). They include:

• Discharge with a caution and reprimand (section 297);
• postponement of sentence, unconditionally or with one or more conditions (section 297);
• suspension of sentence, with or without conditions;
• placement under the supervision of a probation officer or correctional official (section 290, as amended);
• placement in the custody of any suitable person designated by court (section 290(1)(b));
• a fine, which the court may suspend or allow to be paid in instalments (section 297(5)((a) and(b));
• correctional supervision (section 276A);
• sentence to a reform school (section 290(1)(d));
• imprisonment, including periodical imprisonment.

9.7 Of note is the wide range of options allowed in the Criminal Procedure Act for conditions of suspension of postponement of sentence. In section 297, these are enumerated as follows:

• Compensation;
• rendering to the person aggrieved of some specific benefit or service in lieu of compensation for damage or pecuniary loss;
• performance without remuneration and outside the prison of some service for the benefit of the community under the supervision or control of an organisation or institution (ie community service);
• submission to instruction or treatment;
• submission to the supervision or control of a probation officer;
• compulsory attendance or residence at some specified centre for a specified purpose;
• good conduct;
• any other matter.

9.8 With respect to the community service order, however, the present legislation does not permit its imposition on a young offender below the age of 15 years.

9.9 The sentence of correctional supervision has been described not so much as a sentence, but as a collective term for a wide variety of measures which have in common that they are all applied outside prison.^[85] These measures can include monitoring, house arrest, community service and placement in employment. Correctional supervision can only be imposed on a juvenile after a report by a probation officer and can be imposed for any offence. In S v Williams, the Constitutional Court described correctional supervision as a “milestone in the process of humanising the criminal justice system”. In the draft Correctional Services Bill, a separate chapter on community corrections serves to emphasise the vital role that these sentences are destined to play in the development of a new South African correctional system.

9.10 The current sentencing provisions in the Criminal Procedure Act, as outlined above, are regarded as being quite wide.^[86] The Constitutional Court, too, regarded the present penalties as permitting of a more flexible but effective approach in dealing with juvenile offenders.^[87]

(iii) Post-conviction measures, other than sentencing in terms of the Criminal Procedure Act

9.11 After conviction, it is still possible to convert a criminal matter into a Children's Court Inquiry in terms of section 254 of the Criminal Procedure Act. The criminal conviction then falls away, and a range of outcomes as provided for the Child Care Act 74 of 1983 become available. These include:

• Placement of the child in the custody of a foster parent;
• placement in a children's home;
• sending the child to a school of industries;
• return of the child to a parent or guardian under supervision of a social worker.

(iv) Procedures related to sentence and review

9.12 The normal rules relating to restrictions placed on the sentencing powers of district and regional courts apply to magistrates dealing with juvenile offenders, as do the rules pertaining to automatic review procedures, with the addition that for the purpose of automatic review imprisonment includes detention in a reform school. In brief these rules are as follows: Where the magistrate has held the substantive rank of magistrate for less than seven years, any sentence longer than three months will automatically be reviewed by a judge of the provincial or local division of the High Court. Where the magistrate has held the substantive rank of magistrate for longer than seven years, however, only sentences of over six months imprisonment will automatically be reviewed.

International perspective

9.13 "The twin principles of proportionality and the duty on the state to take account of the child's well-being underline much of the detail found in international law concerning the aims, restrictions and prohibitions on the sentencing of children".^[88] These include:

• In all except minor cases, the juvenile’s background and circumstances should be made known to the authority through social inquiry or pre-sentence reports (Beijing Rule 16). The commentary maintains that these reports are an indispensable aid in legal proceedings involving juveniles.
• Juveniles should not be subject to corporal punishment (Beijing Rule 17.3), capital punishment, nor should they be sentenced to life imprisonment without possibility of release (Convention on the Rights of the Child article 37(a)).
• Deprivation of liberty shall be used as a measure of last resort and for the shortest appropriate period of time. There is, therefore, a presumption in international law against institutionalisation, evident in both the Beijing Rules and the Convention.

Proposals

(i) Sentencing options

9.14 The disposition of matters before the juvenile court should reflect the best interests of children, the intention to promote and protect such interests, and the need to return such children back to society where they should lead constructive lives. In this regard, the following proposal is made:

9.15 Custodial sentences should be the last resort in children’s matters. Where such sentences are passed, they should be for a minimum period and should be conducive for the return of children back to the society. Non-custodial measures should be explored and used as much possible.

9.16 The IMC report^[89] recommends that more emphasis be placed on community based sentencing. Programmes used for diversion can also be used for community-based sentencing.^[90] It would seem that the present wide legislative framework could accommodate this, but further development of options in new legislation may be possible.

9.17 An issue which has been canvassed by NGOs and academics in South Africa, and not presently directly accommodated in legislation, is the possibility of further post-conviction strategies, other than the imposition of sentence or conversion to a children's court inquiry. These might, for example, include referral after conviction to a family group conference or restorative justice process. It could be argued that the conviction should then fall away, as is currently the case with the conversion to a children's court inquiry. This would entrench the concept of diversion even after conviction.

(ii) Current sentencing trends

Imprisonment

9.18 It is difficult to obtain statistics on relevant sentencing trends. The last avalable CSS statistics^[91] pertain to the time when whipping was still a prevalent sentence for juvenile offenders.

9.19 According to statistics supplied by the Department of Correctional Services, there is a daily average of almost 900 children under the age of 18 serving sentences of imprisonment. This average has increased from approximately 600 three years ago.^[92] In the 1996 Annual Juvenile Justice Review,^[93] evidence of an increase in imprisonment as a sanction for young offenders is provided. A comparison between children serving sentences in prison on 31/7/1995 and 31/7/1996 revealed that 29,9% more children were in prison on that day in 1996 by comparison to 1995. At this same time, the overall prison population increased by only 10%. Of the children serving sentences of imprisonment on 31 July 1996, almost half were serving sentences for economic offences. Six were serving sentences for narcotic offences, and 35 for a category "other". The remainder were serving sentences for violent offences.

Other institutions

9.20 The IMC investigation into 30 places of safety, 17 industrial schools and 5 reform schools found that in June 1996 there were 6127 children in these institutions, of whom 85% were placed there because they had been found to be in need of care and protection under the Child Care Act. Children may be transferred from children's homes to schools of industry and from there to reform school by bureaucratic action. It is therefore not possible to determine how many children are serving sentences for criminal offences in reform schools. Because referral to a school of industry is not a sentence option, but rather an outcome of a children's court inquiry, it is also not possible to determine how many children are placed in schools of industry after diversion from the juvenile court.

Alternative sentences

9.21 A NICRO study estimated that nearly 60% of the cases referred to the youth offender programme are pre-trial diversions, with the rest being sentenced offenders.^[94] In these cases, a suspended or postponed sentence is passed on condition that the offender attends the course.

9.22 In a study of juvenile courts in nine jurisdictions, it was found that the majority of sentences of cases in that sample were suspended or postponed.^[95] In 60% of the cases which proceeded to sentence in the sample, no immediate punishment was imposed.

9.23 In the same study, large disparities in sentencing of juveniles in different regions were also noted. Some regions used a much wider variety of sentence options. Imprisonment was used disproportionately in different jurisdictions. Also, the findings suggest that magistrates "make use of a very limited number of sentencing options. Community service orders, correctional supervision and other non-custodial alternatives that are available are not frequently used."

(iii) Sentencing guidelines

9.24 The disparities noted above, and the apparent trend towards over-use of imprisonment as a sentence for children, even where non-violent offences are involved, together with the need to introduce community-based sanctions and restorative justice options at the sentencing phase, raises the issue of whether sentencing guidelines, limitations on the imposition of certain sentences or some other limiting mechanism should be incorporated in proposed legislation. At present, South African judicial officials enjoy wide ranging discretion in sentencing, and interference on appeal would only be justified if a lower court's sentence was "shockingly or startlingly inappropriate". It has been suggested that South Africa does not have a coherent sentencing policy, and that a Sentencing Commission would be an appropriate institution to draw up such policy "which complies with the emphasis on Human Rights of the Constitution and which uses the language of rehabilitation and community within the framework of ‘limiting retributivism’."^[96]

9.25 Suggestions such as these may promote equality with respect to the use of imprisonment and other custodial sentences for children, and may be able to assist in implementation of the constitutional requirement that detention be used only as a last resort and for the shortest appropriate period of time. Also, legislative provisions on sentencing may encourage the development of alternative sentences, including restorative and community based sentencing options.

9.26 Various options can be considered in this regard, singly or in combination:

(a) Sentencing guidelines, based on international rules and accepted sentencing "best practice" could be drafted to assist sentencers in the exercise of their discretion. For example, guidelines could indicate that imprisonment should not be imposed for offences other than serious and violent offences.^[97]

(b) A further option would be to exclude the use of certain sentences in certain instances, for example, no imprisonment for children below the age of fourteen. This could be effected by means of direct provisions, or use could be made of schedules of offences, indicating when (for example) imprisonment is a possible sentence, and when it is not permissible as an option.

(c) Sentencing could be done according to current procedure, but improved monitoring and review of sentences could be built into proposed legislation. For example, all sentences of a certain nature could be included in automatic review procedures, which could then be expanded. In this scheme, short term prison sentences, for example, which presently fall outside of review criteria, would be subject to review. Alternatively, a juvenile sentencing commission or similar monitoring body could undertake regular review of all juvenile sentences.

(iv) Reform schools

9.27 The IMC investigation into places of safety, industrial schools and reform schools revealed numerous problems with respect to these institutions. Reform schools are not evenly spread throughout the country, and of the nine existing institutions, six are in the Western Cape. Some institutions are under-utilised. Children are frequently sent to distant reform schools from other provinces, which does not promote reintegration and maintenance of family contact. Additionally, it is observed that children sometimes serve longer sentences in reform schools than they would if imprisonment were imposed. This results in unequal sentencing.

9.28 However, an equally powerful argument is that if this sentence were not available, children may then be sentenced to imprisonment. This is of concern particularly when younger children are convicted of serious and violent offences, where custodial punishment will be imposed for the safety of the community. Proposed secure care facilities for children are at present being designed only as facilities for children who await trial, although suggestions have been put forward that they could in future also function as centres where custodial sentences can be served. But, at the present time, no alternative custodial sanction is available other than imprisonment or a sentence to attend a reform school.

9.29 In view of these considerations as well as the recent findings of the IMC investigation report, there is a need for a thorough review of the sentencing option of reform schools including an exploration of possible alternatives and the minimum period of time that a child spends in such institution.

Comment is invited on this issue.

(v) Fines

9.30 Research shows that, along with monetary bail, fines are used in practice as a sentence for juvenile offenders, even though it may be thought that children would not have the means to pay a monetary amount. Some children, or their parents, are unable to pay the amounts concerned and serve alternative prison terms instead. NGOs have argued that the imposition of a fine on child offenders is, by virtue of their youthful status, inappropriate. It is also felt that it is unfair to expect families of juvenile offenders to pay their fines, the proceeds of which accrue to the state. It is therefore suggested that a monetary fine may be excluded from the range of sentence options provided for in proposed legislation.

9.31 However, the payment of reparation to victims (which may be symbolic rather than representative of an actual amount due to the victim by virtue of the loss or damage caused), falls within the notion of restorative justice. It is also beneficial from the point of view of community and victim involvement in justice processes, whereas a fine is paid to the State; in this case the victim receives some contribution towards making good the harm done. International studies have shown that the payment of reparation, even if the contribution is in part made by families of juvenile offenders, enhances the juvenile's acceptance of accountability for wrongdoing. It is suggested that the exclusion of monetary fines should therefore not preclude the possibility of payment of money as an aspect of reparation or restorative justice options.

Comment is invited on the above.

(vi) Alternative sentencing and restorative justice

9.32 In the IMC Interim Policy Recommendations it is noted that in order for alternative sentencing to work, an adequate infrastructure should ideally be widely available. On the other hand, as with diversion, the courts should not be unduly hamstrung by administrative and other difficulties (S v Sikunyana, which involved a community service order in a rural area where formal services were not available). The proposed legislation should encourage sentencers to be innovative and creative, in the absence of formal alternative sentencing programmes (with due regard to due process considerations and proportionality).^[98]

9.33 At present, most sentences that would be described as alternative sentences (for example compensation, community service, attendance at courses or treatment at specified centres) cannot be imposed on their own. They can only be imposed as conditions of suspension or postponement of sentence. Conversely, all suspended sentences in present legislation must have conditions attached (including the negative condition not to re-offend) in order to be legally enforceable. It is not possible to ascertain (either in respect of adults or in respect of juveniles) the rate of breach of suspended sentences.^[99] The structure outlined here may not be desirable for proposed juvenile justice legislation which aims to introduce a restorative justice approach. It may be desirable to legislate for alternative sentences to be imposed independently, without the necessity of always linking these to suspended or postponed sentences. If the alternative fails or is not carried out, that matter could be referred back to court for fresh consideration of sentence, including the imposition of another alternative sanction. The advantage would be to encourage maximum consideration of alternative sentencing.

9.34 Restorative justice has been decribed as a theory of reconciliation, rather than a theory of punishment. Encompassing a range of options, it focusses on repairing harm done to the victim or to society, rather than on retribution exacted by the state. As a model, no system can be entirely restorative, yet it is possible to include restorative processes as part of continuum of sanctions. Restorative options are, in other systems, not necessarily confined to petty offences, given the time and resources required to implement negotiated agreements with victims and/or other role players. They are thus used as intermediate sanctions. Although current pilot projects in South Africa focus on Family Group Conferences (FGC) as processes rather than results of criminal trials, it may be useful to include in proposed legislation the possibility of referral to a FGC or community sentencing circle^[100] after conviction.^[101]

Comment on the legislative incorporation of restorative, or community based sentencing options is invited.

(vii) Correctional Supervision

9.35 Correctional supervision, introduced in 1993, is also a community based sentence composed of various measures, such as house arrest and attendance of programmes. It is considered a severe punishment, and has been used for offences such as rape, major thefts and assaults. It is unknown to what extent it has been imposed upon children under the age of 18, but many correctional officials have expressed discomfort with the idea that young children below, say 15 years, be included within the ambit of this sentence. It requires a great degree of responsibility in order to fulfil the reporting and attendance requirements, as well as to comply wih conditions such as house arrest. In addition, there is the difficulty with the community service aspect of the sentence, in that the current minimum age limit for this in the Criminal Procedure Act is 15 years.

9.36 However, many would argue that correctional supervision is nevertheless preferable to imprisonment, and may even be preferable to a reform school sentence which frequently removes the juvenile offender from his or her home province^[102] and therefore from any access to his or her family. In addition, reform school sentences are two years in length. Correctional supervision might therefore provide an alternative to this two year custodial sentence, especially where children are to be removed to another province.

9.37 In order to delineate juvenile sentencing from the adult sentencing system, different restrictions should be placed upon the maximum length of time for which correctional supervision may be imposed. This is also in accordance with the principle that time frames should be appropriate to children. Two years is suggested as a possibility.^[103] In relation to the content of correctional supervision orders, it is possible that conditions which are appropriate to children's capabilities and degree of responsibility are not impossible or unachievable. These may be included in proposed legislation itself, or, in the alternative, such sentences could be subject to automatic review or monitoring by and independent sentencing structure (see below).

Comment is invited.

(viii) Pre-sentence reports

9.38 Monitoring of children in detention, and children serving sentences has revealed that many children serve terms of imprisonment without a pre-sentence report having been requested or provided. It is therefore proposed, in line with the international rules and also with South African court decisions,^[104] that pre-sentence reports should be mandatory before a custodial sentence can be imposed.

(ix) Evidence relevant to sentence

9.39 A question is raised as to whether evidence of previous pre-trial diversion is admissible at the sentencing stage at a later trial. South African law would at present not permit this. The evidence involved could be general (any evidence relating to a previous diversion is admissible) or specific to certain types of diversion, for example evidence of a previous formal caution.

9.40 The advantage of allowing this evidence would be that it would give the diversionary sanctions some "teeth". The disadvantage, however, is that the previous diversion would have been predicated on an "acceptance of guilt", and is not a previous conviction.

[82] 1995 (3) SA 632 (CC).

[83] See J Sloth-Nielsen Juvenile Justice Review 1994 - 1995 1995 SACJ 331 at 341.

[84] T Geldenhuys and G Joubert Criminal Procedure Handbook Cape Town: Juta 1994.

[85] S v R 1993 (1) SA 476 (A).

[86] IMC Recommendations 54.

[87] S v Williams and Others 1995 (7) BCLR 861 (CC) at 883.

[88] Van Bueren 183.

[89] P 25.

[90] For example, the youth empowerment programme of NICRO is currently available as a pre-trial diversion, or as a condition of suspension or postponement of sentence.

[91] Report 00-011-01 for the period 1993 to 1994.

[92] According to a personal communication with the Department of Correctional Services.

[93] Forthcoming in 1996 SACJ.

[94] L Munting (ed) Perspectives on Diversion supra 16.

[95] Study by J Sloth-Nielsen and S Said.

[96] N Hutton Sentencing in the new South Africa: Prospects for Reform (unpublished). The South African Law Commission also appointed a project committee in respect of its investigation into sentencing during September 1996 to make recommendations regarding all aspects of sentencing.

[97] In compliance with the Beijing Rules.

[98] N Hutton supra quoting NC Steytler Constitutional Principles of Criminal Procedure (forthcoming).

[99] Ibid.

[100] As related sentencing tribunals are known in areas of North America.

[101] It should be noted that in the pioneering New Zealand juvenile justice legislation, such referral after conviction is mandatory.

[102] See the IMC Recommendations which indicates that in June 1996, 215 children in reform schools were placed away from their home province, while 1 425 children in schools of industry had been similarly placed in another province. In the Northern Cape, it has been estimated that R800 000 is spent annually on travel arrangements for children from that province who have been placed in institutions in the Western Cape.

[103] The draft Correctional Services Bill (clause 52) refers to 3 years as a maximum period.

[104] S v H and Another1978 (4) SA 385 (EC), S v Ramadzanga 1988 (2) SA 837 (V), S v Quandu en Andere 1989 (1) SA 517 (A).