/ 29 March 2004

Why SA needs minimum sentences

South Africa celebrated its finest hour as a beacon of constitutionalism and rule of law in the world with the opening of the Constitutional Court building in Johannesburg.

The function was attended by judges, including chief justices, from all over the world. It was a truly a momentous occasion for South Africa’s judiciary.

It was, therefore, a pity that many of the distinguished guests did not know that ours is still such an inconsistent judiciary that it often faces reasonable accusations of remaining racist and arbitrary.

In the same week as the judges touched down, the Soweto police released a statement in which they proudly stated that, in June 2002, “three black males were arrested for armed robbery of a cellphone” in Meadowlands, Soweto.

The release went on to say that earlier this month one of the men was sentenced to 18 years’ imprisonment for the armed robbery, the second suspect was jailed for four years for possession of a gun and bullets and the third was acquitted. That is 18 years for robbing someone of a cellphone.

Let me provide some context to show why I believe that this sentence is excessive and in all likelihood (for this I depend on gut feel alone) determined by race and class.

Fraudster-cum-investment guru Jack Milne was sentenced to eight years in jail for making potential investors part with R160-million, which they had invested with him.

Milne was accused, together with Tigon CEO Garry Porritt and Tigon director Sue Bennett, of defrauding more than 4 000 investors.

Of the eight-year prison sentence, three were suspended. Milne is eligible for parole after one-fifth of the five years he is sentenced to. This means that by the time the unnamed “black male” acclimatises to prison life, Milne could be back in dark suits and colourful ties instead of the orange prison-issue outfit.

In another case, cash-in-transit kingpin Collin Chauke was sentenced to 15 years for his part in the theft of R12,6-million from a SBV, a cash transport company, depot.

His saving grace was that he did not have a gun with him at the time. As in the Milne case, Chauke’s victims have not materially benefited from his arrest because only about R2,2-million of the stolen loot was recovered.

What these cases highlight is that you are likely to get off easier if you use your brain rather than brawn to hurt others.

What can be said about the case of Gerrit Maritz, the Mpumalanga farmer who killed his worker, Jotham Mandlazi, by dragging him alongside his bakkie until he fell under its wheels? Maritz was sentenced to two years in jail or a R36 000 fine by the Nelspruit circuit of the Pretoria High Court.

Judge Johan Els found that the incident had not been racially based and that the farmer was actually friendly to his workers. This the judge knew because another worker, Isaac Ngwenya, had so testified.

Maritz dragged his “friend” because he was absent from work. I shudder to think what the sentence would have been had Mandlazi merely suffered injuries.

Even in accepting that one has not read the judgement in each of the above cases, what remains is that there are huge inconsistencies and that intervention is needed.

Judges have been in a froth since the Criminal Law Amendment Act became operational in May 1998.

In terms of that law, people convicted in certain categories of crimes should be sentenced to specific minimums, unless there are “substantive and compelling” reasons for judges to apply their own minds.

At the time that the law was implemented the government argued that it was aimed at ensuring consistency and showed that the government was determined to deal with the more serious and pervasive crimes.

Armed robbery was one of the crimes that was given a stipulated minimum sentence of 15 years in jail — probably the reason the “black male” was sentenced to 18 years.

The Act also stipulated that those found guilty of raping children under 16 years of age should be given a life sentence. A similar fate is applicable to people who kill a police officer or who partake in hired hits.

Judges, who were naturally indignant about their powers being curtailed by the legislature, did not take kindly to the new piece of law.

Johannesburg High Court Judge MS Stegmann once drew similarities between the minimum-sentence laws and an excerpt from Lewis Carroll’s Alice in Wonderland. “‘Let the jury consider their verdict,’ the King said … ‘No, no,’ said the Queen. ‘Sentencing first — verdict afterwards.'”

In one of the more forthright opinions expressed on the matter, retired Appeal Judge A Botha said: “It is not for me to comment on the policy of the legislature when I have found an unavoidably clear expression of it in the Act. But I am qualified, entitled and obliged to speak my mind on the effect of policy in the administration of justice. I find the legislative provisions, which reduce a sentencing court to a mere rubber stamp, to be wholly repugnant.”

In another case, Judge RG Nairn said: “It seems the nature of our sentencing procedures make this type of outcome inevitable, because whereas the course of the trial is determined by clearly defined rules of law, the approach to sentencing is left largely to chance.”

But it was another judge who observed that sometimes justice is not colour blind. Judge Geoff Leveson of the Johannesburg High Court came the closest to admitting that sometimes judges had racial biases.

“In instances it has been alleged that a black wrongdoer has received more severe sentence than his white counterpart for a similar crime. Unhappily, there may be instances where this criticism has validity.”