We’ve often celebrated or, at times, been outraged by certain sentences that have been imposed on criminals for various heinous or illegal acts. The general public either agrees that with the sentence and feels as though the punishment fits the crime, or is convinced that justice wasn’t served. Essentially, how jail time is determined in South Africa depends on various factors.
Who determines the appropriate sentence in South Africa?
The trials courts of South Africa are primarily responsible for sentencing. It is well within their discretion to determine the type and severity of a sentence on a case-by-case basis.
High Courts hear only the most serious criminal cases, while Magistrates’ in the Regional Courts try all crimes except treason. The Regional Court can hand down a maximum sentence of up to 25 years in prison or a fine of up to R600 000.
Magistrates in the District Magistrates’ Courts try less serious cases. They cannot hear cases of murder, treason, rape, terrorism or sabotage, and can sentence a person to a maximum of 3 years in prison or a fine of up to R120 000.
In terms of the trial courts determining the appropriate punishment and jail time, there are three guiding principles that must be considered. They are collectively known as the “triad of Zinn”: the gravity of the offence, the circumstances of the offender, and public interest.
- The gravity of the offense
To ensure the punishment isn’t disproportionate to the crime, the severity of the illegal act must be considered. Then, aggravating factors or extenuating circumstances will also be looked at. For example, if it is a violent crime, the aggravating factors that will be considered include the degree of the violence, the type of weapon used, the callousness on the attack, and to what extent the victim was harmed, etc. What will also be considered is if the crime was premeditated (i.e. planned) and whether the offender was difficult to arrest.
- The circumstances of the offender
Legally referred to as “individualisation”, the personal circumstances of the criminal must also be taken into account. In this instance, aggravating circumstances would be something like an existing criminal record or abusing a position of trust, amongst others. On the flip side of the coin, mitigating factors (any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence) include age and whether or not it was a first offense.
- Public interest
This calls for the consideration of the general objectives around punishing a criminal i.e. stopping a criminal from committing another crime, rehabilitating the criminal and protecting society from future acts of crime or violence.
Public interest considerations can aggravate or mitigate a jail sentence. For instance, aggravating factors may include that the offender is dangerous and a long period of incarceration will protect the community, or the offence is so severe that an increased punishment is necessary to serve as a deterrent. However, public interest considerations may mitigate a sentence if the economic and social cost of a long jail sentence is not beneficial to the community. i.e. if the offender is the breadwinner of a family.
Do the trial courts have the final say in determining the jail sentence?
Sentences can be appealed if they are believed to be disproportionate to the crime committed or unfairly imposed, i.e. if the sentence could be considered too high or low. This means that the law does make provision for improperly imposed sentences to be altered or reversed.
However, there aren’t specific parameters in place to decide whether or not a sentence, so there is still a vast amount of judicial discretion.
Are there minimum sentences for certain crimes?
Yes. In 1998, legislation that called for minimum sentence for specific serious offences and crimes was passed in South Africa, some of which include murder, rape, human trafficking, smuggling of weapons or explosives, and theft.
One of the biggest contributing factors to the development and implementation of prescribed minimum sentences was widespread public concern. With the abolition of the death penalty in 1995, many thought that crime rates would increase and that punishments weren’t sufficiently severe.
According to law, a judge can deviate from imposing the minimum sentence if “substantial and compelling circumstances” exist. The judge must clearly justify this decision on record.
Discretionary minimum sentences for certain serious offences as per the Criminal Law Amendment Act 105 of 1997:
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