The department of justice came in for a bruising when it proposed an increase in powers to regional court magistrates to hand out life sentences.
This is the issue Parliament’s portfolio committee on justice and constitutional development has been grappling with for the past two weeks. The proposed amendment seeks to streamline the split system in which regional courts need to refer serious criminal convictions to the high court for sentencing.
The Criminal Law (Sentencing) Amendment Bill, introduced in May this year, was attacked in public hearings, but the department has remained adamant that clarifying the Bill’s wording could address most of these critiques.
The main points of controversy relate to regional magistrates being able to pass down life sentences; the effect the legislation will have on overcrowding in prisons; the implications it will have for child offenders; its shortcomings in dealing with rape cases; and if it will help in the backlog of trials.
While the Association of Regional Magistrates of Southern Africa (Armsa) argued that ‘regional magistrates are dealing with these cases on a regular basis already†and are, in fact, ‘far more experienced†than judges in dealing with these cases, the South African Human Rights Commission (HRC) questioned whether regional magistrates ‘have the necessary training and experience to impose such sentencesâ€.
The HRC asserted that the high courts had the necessary ‘checks and balancesâ€, which do not exist in the lower courts.
The Open Society Foundation of South Africa (OFS-SA) said regional magistrates should not be vested with this power and added that the automatic right of appeal from the regional court would not be a ‘complete answerâ€, because most accused cannot afford proper legal representation.
Armsa said the legislation will reduce the number of awaiting-trial prisoners.
But this was challenged by researchers Jean Redpath and Michael O’Donovan on behalf of Hlakanaphila Analytics. The main reason for overcrowding was not awaiting-trial prisoners, but rather those already sentenced. The proposed legislation will lead to a ‘rise in the number of long sentences†and these, in turn, will ‘lead to more frequent mass early releases from prisons†when facilities are too full, the researchers said.
‘Minimum sentencing has worsened the problems of inconsistency in sentencing of serious crime,†they said, and argued that such legislation should remain ‘subject to renewal†(as it has been since 1997) or ‘scrapped†altogether. Redpath and O’Donovan provided statistics showing racial and provincial disparities in sentencing and even cases where sentencing disparities existed within one court.
They concluded that South Africa needs a ‘comprehensive sentencing package†that also looks at lesser crimes, because offenders do not receive the appropriate message from the criminal justice system.
The HRC, the OFS-SA, the Centre for the Study of Violence and Reconciliation and the Tshwaranang Legal Advocacy Centre have concurred, saying the issues need to be debated far more widely and that a far more detailed sentencing framework needs to be developed.
Concerns were raised by the Child Justice Alliance that sections of the legislation relating to child offenders are ‘unconstitutional and in conflict with South Africa’s regional and international obligationsâ€. The alliance proposed that ‘no minimum sentence should be applicable to persons under 18 years of ageâ€.
The OFS-SA and the HRC concurred, saying that minimum sentencing in the case of children is a ‘first resortâ€, whereas in terms of the Constitution, in the case of children, sentencing should be a ‘last resortâ€.
On the issue of rape, the Cape Bar Council said that allowing sentences lesser than the minimum sentence, if there are ‘compelling and substantial circumstances†to do so, amounted to an ‘unwarranted interference in the court’s discretionary powersâ€.