Opinions About Sentencing and Sentences

Most respondents believed that crime levels are affected by the sentences handed down by the country’s courts. A substantial majority thought that sentences were too lenient, and that lenient sentences had played a major role in the increase in crime since 1994. Most respondents thought that the introduction of harsher sentences would decrease the crime rate.

Three-quarters of the respondents were in favour of the reintroduction of the death penalty for persons convicted of the most serious crimes. Most respondents who favoured a return of the death penalty did so because they believed that it would help to reduce serious crimes and serve as a deterrent to criminals.

Respondents were given a brief description of a number of crimes. They were then asked to place themselves in the position of a sentencing officer and determine what sentence the offenders in the given examples should receive. Respondents were considerably less punitive when they were given some information on an actual crime than when they were asked general questions about sentencing. While three-quarters of respondents favoured a return of the death penalty, when presented with detailed examples of crimes, less than half imposed such a sentence even for the most serious and brutal crimes. Respondents were particularly lenient in punishing persons who had been convicted of vigilante type crimes.

There was a widespread feeling among respondents that magistrates and judges were not in touch with what ordinary people thought. Rural respondents were the most likely to think so.

Most respondents felt that lay assessors should assist magistrates in sentencing offenders. Respondents typically motivated their support for the use of lay assessors in the sentencing process by saying that assessors knew more than magistrates about the local conditions where the crime took place. A substantial majority of respondents were opposed to grant lay assessors the power to overrule magistrates’ sentencing decisions. Respondents generally felt that lay assessors would be more punitive than magistrates when it came to punishing convicted offenders.

Just over three-quarters of the respondents thought that sentences handed down by the courts had an effect on criminals’ propensity to commit crime. Respondents in the urban areas were most convinced of this (82%), followed by those in small towns (73%), and rural areas (68%). Moreover, coloured and black respondents were more likely to think that sentences affected criminals’ behaviour (86% and 81% respectively), compared to white respondents (58%).

When asked what they thought about the sentences handed down by the courts, a majority said they were ‘much too lenient’ (58%) or ‘slightly too lenient’ (27%). Only 4% of respondents thought sentences were much or slightly too tough, and one out of ten respondents said sentences were ‘about right’. While just over 60% of urban and small town respondents thought sentences were much too lenient, only 28% of rural respondents thought so. The most common rural response was that sentences were slightly too lenient (48%).

White respondents were most likely to state that sentences were much too lenient, with 71% saying so, compared to 56% of black and 48% of coloured respondents. Moreover, not one white respondent thought that sentences were either much or slightly too tough (figure 8). Female respondents came out strongly in saying that sentences were much too lenient (66%), with just under half of male respondents saying so. A significant higher proportion of respondents aged 18 to 30 years and those older than 50 thought that sentences were much too lenient compared to the middle-aged group (31 to 50 years).

Figure 8: Respondents' perceptions of sentences handed down by the courts as too tough, about right, or too lenient

Almost half of the respondents motivated their views on sentencing by saying that sentences handed down by the courts were too lenient on repeat offenders and had no deterrent effect. A further 22% of respondents felt that sentences were too lenient and did not match the severity of the crime committed by the convicted person. Some 11% thought that sentences were too lenient in that criminals got off too lightly or were released from prison too early.

South African courts are obliged to take an offender’s previous convictions into account when imposing a sentence.1 Generally, an offender with relevant previous convictions will receive a tougher sentence on conviction. The High Court has held that courts should consider the nature, number and extent of similar previous convictions and the passage of time between them, and the offence for which sentence is being handed down. The closer the present offence is in time and nature to the previous offence for which a person was convicted, the greater a bearing the offender’s previous criminal conduct should have on his present sentence.2 Not much statistical information is available on sentencing trends in South Africa. The available information indicates that, over the last decade, courts have been sending fewer convicted persons to prison.3 Courts are making greater use of correctional supervision as a sentencing option (and as an alternative to imprisonment). However, it would seem that prison sentences are getting longer.4 This could reflect a harsher sentencing regime by the courts, or it could mean that criminals are generally committing crimes of a more serious nature than in the past. It is likely that longer prison sentences are a combination of both these factors. Moreover, minimum sentencing legislation (applicable to certain serious crimes committed after April 1998) will result in the imposition of longer prison sentences.

Four-fifths of all respondents thought that repeat offenders should automatically receive a longer sentence of imprisonment. Urban respondents felt most strongly about this with 90% advocating longer prison sentences for recidivists, compared to small town and rural respondents (75% and 65% respectively). Moreover, white respondents were more likely to favour tougher prison sentences for repeat offenders (95%), than coloured (78%) or black (73%) respondents.

Respondents who had said that sentences handed down by the courts were much or slightly too lenient, were asked to comment on what role lenient sentencing had played in the increase in crime levels since 1994. Nine out of ten of these respondents thought that lenient sentences had played ‘a major role’ in the increase in crime since 1994. There were no significant differences in the responses when broken down by race, gender or area of residence.

Respondents who thought that sentences handed down by the courts played a role in increases in post-1994 crime levels were asked whether they thought that the introduction of harsher sentences would decrease the crime rate. Regardless of area of residence, race or gender, almost all of these respondents (97%) thought that harsher sentences would lower the crime rate.

CAPITAL PUNISHMENT

Three-quarters of the respondents thought that the death penalty should be reintroduced for persons convicted of the most serious crimes. A smaller proportion of urban and small town respondents favoured the reintroduction of the death penalty (72% and 74%, respectively), compared to rural respondents (87%). White respondents were most inclined to support the reintroduction of the death penalty (85%), followed by coloured (75%), and black (69%) respondents. Female respondents were significantly more in favour of the reintroduction of the death penalty than male respondents (80% versus 69%). Thus, almost a third of male respondents were opposed to the reintroduction of the death penalty for persons convicted of the most serious crimes. Education levels made only a negligible difference to respondents’ support for the death penalty.

Of the respondents who favoured a return of capital punishment, most (92%) believed this would help to reduce serious crimes and would serve as a deterrent to criminals. The remainder took an ‘eye for an eye approach’ arguing that criminals who murdered, deserved to die. Most respondents who opposed a return of the death penalty did so on the basis that the taking of any life was wrong, that the death penalty would not reduce crime, and that the Bible did not support the death penalty.

It would appear that the support by most respondents for capital punishment is not based on a belief that the death penalty is an effective preventive measure in that it permanently removes dangerous criminals from society. When the pro-capital punishment respondents were asked whether they would continue to support the death sentence if offenders who committed serious crimes would be given a true life sentence without the possibility of parole, most (76%) answered in the affirmative. Black respondents were most inclined to change their position on the death penalty if real life sentences without parole were handed down (29%), compared to coloured (15%) and white (20%) respondents. The respondents’ answers differed only negligibly when broken down by geographic location.

Focus group findings

Most members of Port Elizabeth’s white focus group felt that the punishment should fit the crime. Thus, a murderer should get at least a life sentence or should be executed. Focus group members were less concerned with the perception that some sentences were too lenient or harsh, but that sentences were too inconsistent. That is, a crime which is punished harshly by one court, is punished leniently by another. Most felt that the death penalty should be reintroduced, especially for rape and murder. Even if there was a true life sentence for serious criminals, most focus group members still favoured capital punishment as life prisoners would cost the tax payer too much money.

African focus group participants in Port Elizabeth also felt that sentencing was too inconsistent from one court to the next. Many did not understand how the sentencing system worked and found the way judicial officers arrived at their sentencing decisions confusing. A majority of focus group members were in favour of reintroducing the death penalty as they felt that crime was out of control. Coloured and Asian focus group members in the city also felt that sentencing was inconsistent, and that harsh sentences were not a deterrent. Many sentenced and incarcerated prisoners remained in contact with those who worked for them (e.g. drug dealers), and continued to manage their criminal syndicates from within the prison walls. Such prisoners should be transferred to prisons in other cities and provinces far removed from their criminal syndicates. Most focus group members supported capital punishment, with those who did not, opposing it on religious grounds.

Graaff-Reinet farmers held that sentences were too lenient and did not serve as a deterrent to criminals. Moreover, sentenced prisoners rarely served the full term of their sentence, and less than half of an imposed prison term is generally actually served. While most focus group members favoured capital punishment, many cautioned that it should be used sparingly. Black and coloured male focus group participants in Graaff-Reinet felt that first time offenders were often punished too harshly by the courts, while repeat offenders were sentenced too leniently. Sentences were not uniform. Most sentences were too lenient, especially in respect of juvenile criminals. The death penalty should be reintroduced for serious offenders on the principle that they got what they deserved: ‘an eye for an eye’. Black and coloured female focus group members felt that sentences should be harsher to serve as a deterrent.

Black focus group participants in Grahamstown were unsure whether sentences were generally too lenient or too harsh. Most did feel, however, that sentences for murder, rape and theft were too lenient. The government should prescribe tough sentences so that these would deter criminals. Virtually all focus group members thought that capital punishment should not be reintroduced, as it conflicted with the basic human right to life as enshrined in the Constitution.

White focus group members in Grahamstown felt that mandatory minimum sentences prescribed by statute were not a good thing. This tied the hands of the country’s judicial officers who would be prevented from sentencing individual accused in relation to the facts of the case before them. Capital punishment was not the ideal sentence for serious criminals, but was necessary because some elements of society still resembled the ‘dark ages’. The death sentence, however, should be used only for criminals who could not be rehabilitated.

Coloured focus group members in Grahamstown felt that sentences were generally too lenient. Imprisonment was not a deterrent to prisoners who could study for free and who were released early on good behaviour. Most felt that capital punishment should be reintroduced in cases of rape, murder and child abuse. Most also continued to favour a return of capital punishment even if true life sentences were imposed as the latter might not have a deterrent effect for those who enjoyed prison, as it is a place where prisoners received regular meals, could watch M-Net (a popular subscriber-based television channel) and not pay taxes.

Umtata focus group members thought that sentences were too lenient, especially for those convicted of rape and child abuse. Mandatory minimum sentences were a good idea, provided that these reflected the true sentence and convicted persons were not released early on parole. The majority of the focus group participants were opposed to the reintroduction of the death penalty. Many felt that capital punishment was not as painful to prisoners as that which they would suffer if they were left in prison for the rest of their lives. Some focus group participants in Thabankulu felt that rapists and murderers should be killed. In the case of theft, victims should be permitted to take something from their thieves which was of equal value as the stolen items. Virtually all focus group participants were in favour of the death sentence as such a sentence would deter would-be criminals, with the result that there would be less crime because of the fear of being caught and sentenced to death.

Respondents were given a brief description of a number of crimes. They were then asked to place themselves in the position of a sentencing officer and to determine what sentence the offenders should receive in the given examples. The crime description and a summary of the respondents’ answers follow below.

Where the crimes are covered by the Criminal Law Amendment Act of 1997, the minimum sentence as prescribed for these crimes is given. Judicial officers are not compelled to impose the minimum sentence as prescribed by the Act. They may, however, impose a lesser sentence (than the prescribed minimum) only if they are ‘satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence’.

Murder

An adult man shoots and kills a police officer who tries to stop him at a roadblock. The man had some dagga (cannabis) in his car and did not want his vehicle to be searched by the police officer.

Some 41% of respondents stated that the perpetrator deserved the death penalty. A further 23% imposed life imprisonment or a prison sentence in excess of 50 years. Eight per cent opted for imprisonment ranging from 26 to 50 years, and 21% for imprisonment of 25 years or less. Many respondents also favoured a prison sentence with forced labour.

Criminal Law Amendment Act: The Act prescribes life imprisonment of any adult convicted of murdering a police officer. (In practice, this would entail a period of imprisonment in excess of 25 years, but probably less than 50 years depending on the age of the convicted prisoner.7)

A 30 year-old man rapes a 15 year-old girl whom he does not know.

Just over a quarter of respondents (27%) imposed the death sentence, and 24% imprisonment in excess of 50 years. Fourteen per cent opted for imprisonment ranging from 26 to 50 years, and 20% for imprisonment of 25 years or less. The remainder (16%) chose non-prison sentences or did not know what sentence to impose.

Criminal Law Amendment Act: As the victim is under the age of 16, the Act prescribes a sentence of life imprisonment.

The Criminal Law Amendment Act no 105 of 1997 provides for minimum sentences to be imposed on persons convicted of certain offences. Judicial officers may only impose less than the prescribed minima if they are “satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence.”5 For example, the Act mandates life imprisonment for persons convicted of murder, where: it was planned or premeditated; the victim was a law enforcement officer, or a person likely to give material evidence in a criminal trial; or it involved rape or robbery with aggravating circumstances. The Act also provides for life imprisonment for rape where the victim is: raped more than once, or by more than one person, or by a person who has been convicted of two or more offences of rape, or by a person who knows that he has HIV/Aids; a girl under the age of 16 years, or is a physically disabled woman and thereby particularly vulnerable, or is a mentally ill woman; or seriously assaulted. The Act came into operation on 1 May 1998 and applies only to persons who are convicted of having committed an offence covered by the Act after April 1998. The minimum sentencing part of the Act will automatically expire two years after it came into operation (i.e. on 30 April 2000), unless its operation is extended which the president with the concurrence of parliament may do one year at a time The courts have always been critical of mandatory minimum sentencing legislation. In a 1990 decision, Chief Justice Corbett commented: “... the imposition of a mandatory minimum prison sentence has always been regarded as an undesirable intrusion by the legislature upon the jurisdiction of the courts to determine the punishment to be meted out to persons convicted ... and as a kind of enactment that is calculated in certain instances to produce grave injustice.”6

A 25 year-old man rapes his 21 year-old girlfriend.

Seventeen per cent chose the death penalty, and 31% imprisonment in excess of 10 years. Six per cent imposed imprisonment of 10 years, and a fifth (21%) imprisonment of less than 10 years. A further 17% favoured an alternative to imprisonment such as correctional supervision, public shaming, or the payment of compensation to the victim.

Criminal Law Amendment Act: A minimum 10 year period of imprisonment is prescribed.

An adult man hijacks a motor vehicle by threatening the owner of the vehicle with a firearm.

Four per cent chose the death penalty, and a further 36% imprisonment in excess of 15 years. Thirteen per cent opted for 15 years imprisonment. A third (34%) chose imprisonment of less than 15 years, and 8% an alternative to imprisonment (such as public shaming and community service).

Criminal Law Amendment Act: A minimum 15 year period of imprisonment is prescribed.

A 32 year-old man breaks into a house and steals twelve music tapes/CDs, and an expensive television set.

Sixteen per cent opted for lengthy prison sentences ranging from 11 to 30 years. A fifth imposed imprisonment ranging from 6 to 10 years, and 36% imprisonment ranging from 2 to 5 years. A further 15% favoured an alternative to imprisonment such as a fine or community service.

A 16 year-old boy breaks into a house and steals twelve music tapes/CDs and an expensive television set.

Respondents were more lenient where a juvenile (as opposed to an adult) was convicted of housebreaking.

Only 5% suggested imprisonment in excess of 10 years. Fifteen per cent chose imprisonment ranging from 6 to 10 years in duration, and 23% imprisonment ranging from 2 to 5 years. The majority (37%) proposed an alternative to imprisonment such as a whipping (13% of respondents), correctional supervision or house arrest.

A 17 year-old boy steals a loaf of bread and polony sausage from a shop.

The most common sentence imposed (by 37% of respondents) was a whipping. A further 40% elected other alternatives to imprisonment such as compulsory counselling sessions, or correctional supervision and house arrest. Only 10% suggested some form of imprisonment.

An adult woman steals a dress and a pair of shoes from a large department store.

Just over half of the respondents (52%) chose imprisonment as a sentencing option, with most favouring a prison sentence between 1 and 5 years (41% of respondents). Other popular sentencing options were a fine (9% of respondents), community service (8%), and public shaming (7%).

An accountant defrauds his employer over a two year period. In total the accountant fraudulently enriches himself by stealing one million rand.

Of the respondents, 22% opted for imprisonment in excess of 15 years. Nine per cent imposed imprisonment of exactly 15 years, and 37% imprisonment of less than 15 years. A further 22% of the respondents imposed a non-custodial sentence such as the payment of compensation to the victim, a fine, or community service. Eight per cent did not know what sentence to impose.

Criminal Law Amendment Act: The Act prescribes a minimum of 15 years imprisonment.

Peter, who is 28 years old, has 10 grams of dagga (cannabis) in his possession which he intends to smoke as it relaxes him. He obtained the dagga from plants he cultivates in his garden.

The most common sentence imposed was a non-custodial one (46% of respondents), primarily a fine, a suspended prison sentence, and compulsory counselling sessions. Some 36% of respondents imposed a prison sentence, with most imposing 1 to 5 years of imprisonment (almost a quarter of respondents). Fifteen per cent of respondents did not know what sentence to impose, and 3% imposed no punishment. Rural and male respondents were the most tolerant of the illegal possession of dagga and were significantly more likely to impose non-custodial sentences.

An adult man sjamboks (whips) a 15 year-old boy whom he caught stealing his weekly wages. As a result, the boy receives serious injuries to his buttocks, and has to receive medical treatment at the local clinic.

One-third of respondents favoured some form of imprisonment. Two per cent opted for more than 10 years imprisonment, and another 2% for 10 years exactly. A further 28% chose imprisonment of less than 10 years, and 52% favoured an alternative to imprisonment such as paying compensation to the victim or a wholly suspended sentence.

Interestingly, 11% of respondents did not know what sentence to impose. This might indicate the possible sympathy of some respondents with vigilante type behaviour. Almost 5% of respondents said that the accused should receive no punishment at all.

Criminal Law Amendment Act: A minimum sentence of 10 years imprisonment is prescribed as the victim is under the age of 16 and the assault is a serious one.

An adult man catches a 19 year-old male youth whom he saw robbing a woman of her handbag by threatening her with a knife. The man hits the youth with an open hand, forces him to strip naked against his will, and then forces him to walk naked to the police station which is 2 kilometres away, where he hands the youth over to the police.

A quarter of respondents chose imprisonment, with most falling into the 1 to 5 years range. A large group (52%) selected an alternative to imprisonment such as a fine or wholly suspended prison sentence. Fifteen per cent did not know what punishment to impose, and 9% would have imposed no punishment.

John is told by his teenage daughter that she was raped and stabbed in her leg with a broken bottle by the local gang leader who is 26 years old. John fetches his gun and a canister of petrol and drives to the home of the gang leader some 10 kilometres away. There he shoots the gang leader in the stomach, douses him with petrol and sets fire to him while he is still alive. The gang leader dies shortly thereafter.

Five per cent imposed the death penalty, and 6% imprisonment in excess of 25 years. Four per cent choose imprisonment of 16 to 25 years, and 2% imprisonment of exactly 15 years. Over a quarter (26%) opted for imprisonment of less than 15 years, while 38% favoured an alternative to imprisonment such as a suspended prison sentence (18% of all respondents) and compulsory counselling sessions. Fourteen per cent did not know what punishment to impose, and 5% imposed no punishment.

Criminal Law Amendment Act: Life imprisonment will apply if it can be proven that the murder was planned or premeditated, otherwise 15 years imprisonment.

Most respondents thought that judicial officers were not in touch with what ordinary people thought. Approximately two-thirds of respondents thought that both magistrates and judges were either ‘very out of touch’ or a ‘bit out of touch’ with what ordinary people thought. Rural respondents (and to a lesser extent black respondents) were the most likely to think that judicial officers were out of touch with the public. In respect of magistrates specifically, the proportion of rural respondents who thought that they were very out of touch with popular thinking was almost twice as high (52%) as that for urban respondents (28%).

When asked whether magistrates or judges are tougher in imposing sentences, a considerable majority of respondents thought judges were tougher (59%). Only one out of ten respondents thought that magistrates were tougher, while almost a third (28%) thought that neither judges nor magistrates were tougher. White respondents were most likely to consider judges and magistrates to be equally tough (40%), while just under a quarter of black and coloured respondents thought so.

LAY ASSESSORS

Respondents were informed that lay assessors are ‘members of the local community who sit in on a trial at a magistrate’s court and assist the magistrate to come to a decision on sentencing. The lay assessor also provides the magistrate with information on the attitudes and feelings of the local community towards a particular crime.’

Most respondents (59%) felt that lay assessors should assist magistrates in sentencing offenders, with 30% saying that they should not. The remainder of respondents were undecided and indicated that they did not know. Rural and black respondents were the least enthusiastic about the use of lay assessors to assist magistrates in their sentencing decisions. Thus, almost an equal proportion of rural respondents were both for (43%) and against (38%) the use of lay assessors. In the urban and small town areas, the proportion of respondents in favour of using lay assessors was about twice as large as those who were opposed to their involvement in the sentencing process. Only a minority of black respondents favoured the use of lay assessors (47%), compared to a majority of their coloured and white counterparts (68% and 73%, respectively) (see figure 9).

The law permits judges to pass tougher sentences than magistrates. Thus, unless legislation provides otherwise, a district court magistrate may impose a maximum period of imprisonment of three years, while a regional court magistrate may hand down periods of up to 15 years.8 There is no limit for high court judges. Legislation and the minister of justice determine the maximum fine which can be imposed by the lower courts for common law offences:9 R60 000 by a district court magistrate, and R300 000 by a regional court magistrate.10 There is no limit for the high court.

Almost three-quarters of the respondents who were in favour of lay assessors assisting magistrates in the sentencing of offenders motivated their reason by saying that assessors have a better feel for the local context (in which the crime occurred), and might know more than a magistrate about local conditions. Some also argued that magistrates needed the help of lay assessors when difficult decisions had to be made.

Of the respondents who opposed the use of lay assessors in the sentencing process almost three-quarters did so because they thought that assessors were not trained in the law or were not suitably qualified. This reason was especially prominent among black respondents. About twice the proportion of black respondents gave a lack of legal qualifications as their reason for opposing the use of lay assessors, as compared to their coloured and white counterparts.

Respondents were opposed to lay assessors having the power to overrule magistrates’ sentencing decisions (71% compared to 16% in favour). Urban respondents registered the highest level of opposition to the granting of additional powers to lay assessors. Moreover, a significantly higher proportion of white respondents were opposed to greater powers for lay assessors (81%), than their black and coloured counterparts (both 67%).

When asked whether lay assessors would be more lenient or stricter in their sentencing decisions (on the presumption that they could overrule magistrates’ sentencing decisions), the most common response was that lay assessors would be stricter than magistrates (46%). Just under a fifth of respondents thought that lay assessors would be more lenient than magistrates in their sentencing decision (19%), while 13% thought that there would be no difference. A significant proportion of respondents across area, race and gender could not motivate why they thought lay assessors would be stricter than magistrates. The community’s desire for retribution was the most common reason given by respondents in urban areas and small towns. Rural respondents, however, were most likely to argue that assessors would be harsher because they were not trained in the law.

Upon the application of either party in a trial, courts may summon the assistance of one or two persons who are suitable and who may be willing to sit and act as assessors in an advisory capacity.11 New legislation (which had not been promulgated at the time of writing) makes the use of lay assessors compulsory under certain circumstances. According to the Magistrates Courts Amendment Act of 1998, magistrates must be assisted by two assessors in the trial of any person accused of murder, rape, robbery or assault where serious bodily harm has been inflicted on the victim, or indecent assault.12 Magistrates may use – but are not compelled to – two assessors in any trial where the offences are not those listed above; in a bail application; or to determine a proper sentence for a convicted person. In respect of a bail application or in determining an appropriate sentence, an assessor may assist the magistrate in an advisory capacity only. However, in a trial and for the purposes of judgement (i.e. finding the accused person guilty or not) the finding or decision of the majority of the members of the court is the finding or decision of the court. That is, in a factual dispute, two assessors can overrule a magistrate’s finding or decision. Any matter of law arising for decision at a trial is to be decided by the magistrate only.

Respondents placed much faith in the ability of tough sentences to bring down the crime rate. This belief is both fallacious and dangerous. It is fallacious as most criminals are never apprehended and even fewer are convicted and sentenced by the courts. In 1998, some 2.2 million crimes were reported to the SAPS and 203 000 perpetrators were convicted.13 Thus, on average, around 9% of reported crimes end in the successful prosecution and sentencing of the perpetrators involved. As many crimes are not reported, the proportion of criminals punished for their crimes is likely to be considerably lower than 9%.

It is also dangerous to presume that tougher sentences will impact directly on the behaviour of criminals. This belief has resulted in public pressure on politicians and policy makers to influence the country’s judicial officers to hand down tougher sentences. One result has been the passing of the Criminal Law Amendment Act of 1997 which prescribes minimum sentences for persons convicted of a range of offences. Another result has been open criticism by parliamentarians of individual judges who passed sentences which were deemed to be too lenient by sections of the public and the media.14 Legislative measures prescribing minimum sentences have the effect of impinging on judicial independence. Through such legislation, the country’s executive usurps the judiciary’s traditional function of punishing the perpetrators it convicts, after having listened to and evaluated all the relevant evidence relating to the crimes in question.

For the courts, sentencing is a complicated process involving the appraisal of a range of factors, circumstances and theories.15 For the public, especially in a country ravaged by high levels of violent crime, this process is often confusing and frustrating when people convicted of horrendous crimes receive what appear to be lenient sentences.

Based on the survey results, it would appear, however, that the public is neither more nor less punitive than the country’s judicial officers. Once respondents were given some information about an actual crime and offender, they became considerably more lenient in their sentencing approach.16

For example, three-quarters of the survey respondents thought the death penalty should be reintroduced for persons convicted of serious crimes. However, when the same respondents were faced with more detailed scenarios of actual crimes, they were considerably less draconian. Even for the most serious crimes, only a minority of respondents opted for the death penalty. For example, only 41% of the respondents imposed the death penalty on the murderer of a police officer (figure 10).

The survey also revealed that 85% of respondents thought that the courts were either ‘too lenient’ or ‘much too lenient’ in sentencing offenders. However, when provided with some information about actual cases, a sizeable minority (between a third and just under a half) of respondents opted for a more lenient sentence than provided for by minimum sentencing legislation (figure 10).

It would seem that the more information available to people about an individual crime, the less punitive they tend to become in their punishment of the offender. While three-quarters of respondents would probably send an offender who had shot and burnt somebody to death to the gallows, very few would do so once they knew the offender committed the crime out of revenge for his daughter’s violent rape (figure 11).

This could explain the discrepancy which exists between the sentences that are handed down by the courts and the public’s perception about them. The general public might read one or two newspaper articles about a crime and the circumstances which led to the commission of the offence. A judicial officer often has hundreds of transcribed pages of testimony and evidence on which a proper sentencing decision can be based.

The misunderstanding between the public and the administrators of justice has to do with a lack of information and communication. Some judges and magistrates seem to be unaware of the public’s feelings and anxieties about certain crimes. Likewise, most people are unaware of the information used by the courts to come to fair and justifiable sentencing decisions.

When it came to vigilante type crimes in the survey’s case studies, many respondents adopted an extremely lenient approach towards the perpetrator of ‘vigilante crime’. Even for the most brutal crime (where the offender shoots and burns to death his daughter’s rapist) over half of the respondents thought that the offender deserved a non-prison sentence, or respondents did not know what punishment was deserved, or they thought that the offender deserved no punishment. While most respondents indicated that they would not get involved in vigilante activity, many seem to harbour latent sympathies for those who committed vigilante type crimes. This should be a warning to policy makers and senior officials within the criminal justice system: a significant number of people are prepared to condone criminal behaviour if it is directed at criminals. That is, many people seem to be prepared to sacrifice criminals’ constitutional rights and the rule of law if such an approach was perceived to be effective in combating criminality.

Notes

Section 271(4), Criminal Procedure Act no. 51 of 1977.



Muggel 1998 (2) SACR 414 (C).



L Muntingh, A criminal justice crisis: Sentencing trends in South Africa, Crime and Conflict, 4, Summer 1995, pp. 21-24.



Ibid; S Oppler, Correcting corrections: Prospects for South Africa’s prisons, ISS Monograph Series, 29, Institute for Security Studies, Halfway House, October 1998, pp. 23-26.



Section 51(3)(a), Criminal Law Amendment Act no. 105 of 1997.



Toms, Bruce 1990 (2) SA 802 (A) at 822C.



Persons sentenced to life imprisonment in terms of the Criminal Law Amendment Act of 1997 may not be placed on parole unless they have served at least four-fifths of the term of imprisonment imposed or 25 years, whichever is the shorter. Presumably, therefore, life imprisonment in terms of the Criminal Law Amendment Act entails a minimum period of imprisonment of 25 years. See section 73(6)(b)(v) of the (still to be promulgated at the time of writing) Correctional Services Act no. 111 of 1998.



Section 92(1)(a), Magistrates Courts Act no. 32 of 1944, as amended.



Common law offences are offences created through custom and judicial decisions. Statutory offences are offences specifically created by statute or legislation, such as an infringement of the Income Tax Act.



Section 92(1)(b), Magistrates Court Act no. 32 of 1944, as amended, read with Government Notice No. R. 1411 of 30 October 1998 (Government Gazette 19435).



Section 34, Magistrates Courts Act no. 32 of 1944, as amended.



Section 93, Magistrates Courts Amendment Act no. 67 of 1998.



M Schönteich, Assessing the crime fighters: The ability of the criminal justice system to solve and prosecute crime, ISS Papers, 40, Institute for Security Studies, Pretoria, September 1999, p. 10.



Maduna notes outpouring of fury over Foxcroft sentencing: State moves on minimum terms for rape, Pretoria News, 22 October 1999; L Altenroxel, Anti-rape group outraged after repeat-offender gets just 9 years in jail: Rape sentence slammed, Pretoria News, 12 November 1999; D Greybe, Judges should take sensitivity lessons: ANC MP says judiciary should be given compulsory training, Business Day, 16 November 1999; Carping of judges OK: ANC, The Citizen, 16 November 1999.



See M Schönteich, Sentencing in South Africa: Public perception and the judicial process, ISS Papers, 43, Institute for Security Studies, Pretoria, November 1999, pp. 9-13.



This proposition is supported by research conducted in the Northern Province in May 1998. See C E Oliver, Public punitiveness and opinions on just desserts: An exploratory study, Master of Arts (penology) dissertation, University of South Africa, June 1999.