CHAPTER 5

PENALTIES

5.1 Penalties in criminal matters

5.1.1 Maximum fines

The responses to the Discussion Paper were not very helpful in making suggestions to come up with an acceptable maximum amount of fine. One respondent suggested that the fine should not exceed R200,00^[63] while another suggested that it should be the same as that of the Small Claims Court, that is R500,00^[64]. Although the matter was specifically raised during provincial workshops, no consensus emerged. Suggestions of a monetary ceiling in criminal matters ranged from R1 000,00 to R10 000, 00. Considering the nature of the offences and the level of poverty in rural areas, the amount of R500,00 would seem to be a reasonable ceiling. However, the problem is how to determine the equivalent in terms of stock if the payment of fines in the form of stock is to continue to be permissible. In Limpopo it was suggested that a goat should be valued at R200,00, a sheep at R300,00 and a large beast at R1 000,00. In KwaZulu-Natal the maximum fine that can be imposed is R1 000,00 or one large beast, implying that one large beast is equivalent to R1 000,00. If the maximum fine is to be fixed at R500,00 as with small Claims Courts, it should mean that fines should be paid in money or small stock. There should be no problem with this, given the less serious nature of offences triable in these courts. On the other hand, the Minister could adopt the KwaZulu-Natal limit of R1000,00 and make that equivalent to a large beast.

5.1.2 What happens to the fines levied?

A matter that turned out to be controversial during the consultation process was where the money from fines should be deposited and how it should be used. In the Discussion Paper, the recommendation was that fines should go into a general revenue fund either at the provincial or national level to be utilised for the direct benefit of the community from which such fines have been levied. This was intended to avoid the situation whereby the fines are appropriated for the personal benefit of the traditional leader. There was mixed reaction to this suggestion during the provincial workshops. On the one hand, in some provinces there was support for the fines being deposited in the provincial revenue fund, leaving it to the provincial government to take care of the customary courts and other needs of the communities. On the other hand in other provinces, the view was that the fines should be deposited in the account of the tribal authority in whose area they were collected, to be applied for the needs of the community^[65]. In the latter case, it was suggested that the funds should be audited and their spending monitored by the provincial treasury. Provision for such monitoring and auditing should be provided for by ministerial regulations.

The draft Bill comes up with a compromise that leaves the fines in the community concerned but attempts to guard against misappropriation. Clause 19 states that:

“(1) A customary court must keep a special account into which all fines paid to the court must be deposited.

(2) Monies from an account established under subsection (1) must be used for the development of the area over which the court has jurisdiction.”

This provision should satisfy most of those who objected to the original recommendation. There will, however, be a need to monitor and audit these special accounts by the office of the Commissioner for Customary Courts, (discussed later in this report).

5.2 Alternative forms of punishment

5.2.1 Corporal Punishment

During some of the workshops, support was expressed by traditional leaders for the reintroduction of corporal punishment in respect of juvenile offenders. It was argued that since the juvenile is likely to be unemployed, if he is fined it is the parents who end up paying and the juvenile does not feel the punishment^[66]. Therefore, it was argued, corporal punishment is the more effective punishment. However, in light of the recent case of Christian Education of SA v Minister of Education^[67] where the Constitutional Court again considered the issue of corporal punishment for children and said there was an obligation on the state to “take appropriate steps to reduce violence in public and private life” and emphasised the duty to protect children, it would not be lawful to allow customary courts to administer corporal punishment to any offender of any age. It will be recalled that in S v Williams^[68], the Constitutional Court rejected the argument that corporal punishment was an effective deterrent and a convenient and beneficial alternative to other forms of punishment. The court held that there were other effective forms of punishment, which were not cruel and degrading, such as community service^[69]. The Abolition of Corporal Punishment Act 33 of 1997 now prohibits corporal punishment.

5.2.2 Orders to keep the peace and suspended sentences

The draft Bill provides that a person convicted of an offence before a customary court, may be ordered by the court to keep the peace and be of good behaviour for a term not exceeding three years^[70]. This is a sanction instead of or in addition to any punishment that the customary court may impose. The provision is intended to maintain the spirit of reconciliation and reintegration of offenders into society rather than retribution.

Another sentencing option open to the customary court is a suspended sentence^[71]. The whole or part of the sentence imposed may be suspended for a period not exceeding three years and may be subject to conditions such as payment of compensation to the victim of the offence. This option is available to the other courts and is even more appropriate to the customary court where the purpose of the proceedings is reconciliation and rehabilitation.

5.3 Penalty for taking rewards

Under the draft Bill^[72], it is an offence for a member of the customary court to take a reward either for his or her benefit or for the benefit of another person in consideration for doing or not doing an act as a member of the court. This is intended to discourage corruption and to promote the independence of the court. As with any other court, members of customary courts should conduct the cases before them “impartially and without fear, favour or prejudice” in accordance with section 165(2) of the Constitution^[73].

^[63] Mqeke RB.

^[64] Van Rooyen GH (Magistrate Greytown).

^[65] Prof Koyana and Bekker support this position on the ground that payment of fines into tribal coffers is traditionally part and parcel of the entire system; that like local government fines, they should be left where they are levied.

^[66] Concerns on corporal punishment were raised in Limpopo, Mpumalanga and North West Province.

^[67] 2000 (4) SA 757(CC).

^[68] 1995 (3) SA 632 (CC).

^[69] Clause 23 of the draft Bill. Community service as an alternative punishment was suggested at the workshop in the Free State.

^[70] Clause 21 of the draft Bill.

^[71] Clause 22 of the draft Bill.

^[72] Clause 20 of the draft Bill.

^[73] Members of customary courts need to be trained on the constitutional imperative of judicial independence. Consideration should be given also to the question as to whether they should be required to take an oath to act impartially, without fear or prejudice as per item 6(1) of schedule 2 of the Constitution.

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