This is a posting from the FW de Klerk Foundation and demonstrates serious issues in our society, judiciary and politics. Read more about it here


Adv Jacques du Preez, FW de Klerk Foundation

On 13 August 2012, in the Western Cape High Court, Judge President Hlophe (with Simela J concurring) set aside a three-year prison sentence imposed by a magistrate’s court, for the theft of goods to the value of R112. The case merits further scrutiny because of its effect on the proper balance between society, the offender and the crime.

In overturning the sentence on review, Hlophe JP emphasised the principle of ubuntu and argued that the magistrate had misdirected himself by placing too much emphasis on the accused’s previous convictions.

Although this was in essence nothing more than a normal review by a High Court of a judgment (and specifically sentence), the facts warrant closer analysis and wider dissemination because of their relevance to the debate on the most appropriate judicial response to rampant crime in South Africa.

The accused was found guilty of theft in Manenberg in 2011 after he had pleaded guilty to stealing 40 packets of yeast worth R112. Despite the relatively low value of the stolen goods, the magistrate sentenced him to three years direct imprisonment.

A core factor in the court a quo’s reasoning in imposing sentence, was the fact that the accused had 17 previous convictions, dating back to 30 September 2002. These included housebreaking with intent to steal, and theft. For these crimes he was given various sentences, ranging from being cautioned and discharged, to fines, community service, correctional supervision and/or different periods of direct imprisonment. All the prison sentences were suspended – on condition that he was not found guilty of further crimes within specified periods. Despite this, the only custodial  sentence that he served was  in 2003. The most recent crime committed by the accused in casu, was theft (on 31 December 2010), for which he was sentenced on 3 January 2011.

The accused admitted these convictions and confirmed that he had used various different identities when pleading to those crimes.

In his judgment, the magistrate provided the following reasons for the sentence he imposed:

Noteven the correctional supervision given to the accused has deterred the accused to stop this kind of behaviour. The last time the accused received direct punishment was in 2003. After that he received correctional supervision for a housebreaking matter but this also did not rehabilitate the accused because the next year or while he was still doing his correctional supervision he was again convicted and given 16 hours of community service. Even these have gone and the accused does not stop with his offending.”

On review, Hlophe JP confirmed the conviction but set aside the sentence imposed by the magistrate and substituted it – cautioning and discharging the accused and ordering that the accused be released from prison immediately.

In South African criminal law the sentencing Court enjoys a wide discretion when considering sentence, except where a minimum sentence is applicable in terms of sections 51 – 52 of the Criminal Law Amendment Act 105 of 1977. As early as 1920, the then Appellate Division ruled in the case of R v Mapumulo that imposition of sentence is “pre-eminently a matter for the discretion of the trial Court.”

Sentencing in criminal matters involves a number of rationales including: retribution, prevention, deterrence, reformation or an integrative approach comprising deterence and retribution. Modern sentencing policy in our Courts is generally aimed at a balanced combination of these and other factors, especially given the framework of rights within our constitutional dispensation.

In the well known case of S v Zinn the then Appellate Division ruled that in exercising its discretion the Court must consider the so-called “triad” consisting of the crime, the offender and the interests of society. This means that there is a space for considering ubuntu when weighing sentence, although it is but one of many factors.

In the matters of S v Khumalo and R v Karg – both former Appellate Division rulings – it was held that deterrence is the main purpose of punishment as well as the essential all-important and universally admitted object of punishment.

Our Courts have consistenly ruled that imprisonment should not be lightly imposed if the objective of punishment can be met in another way. Previous Courts for this accused have gone down this route and clearly the magistrate in casu considered those options and their effects  on the accused.

It is clear from further passages in the judgment that the magistrate did not misdirect himself by placing too much emphasis on the accused’s previous convictions.

The question is this: in setting aside the sentence, did Judge President Hlophe find a proper balance between the crime, the offender and the interests of society? What message does his judgment  send to the public and to criminals? Should the principle of ubuntu be used to condone repeated and consistent criminal behaviour?

Hlophe JP also made the remark that in his view the magistrate passed the sentence “in anger”. However, in the Appellate case of S v Holder the Court ruled that imaginary misdirections should not be relied upon when altering  sentences as such a course undermines confidence in the judicial officer who tried the case. We should therefore also ask what message Hlophe JP is sending to our magistrates.

Read the judgment HERE.

About Wilhelm Weber

Pastor at the Old Latin School in the Lutherstadt Wittenberg
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