South Africa's sentencing legislation has not been successful in its objective to reduce the crime rate in the country; instead, the crime rate has increased, which is further driven by high levels of inequality and extreme poverty on the one hand, and greed and corruption on the other hand, according to Justice Nambitha Dambuza, Judge at the Supreme Court of Appeal.
Justice Dambuza was the opening guest speaker at a global symposium held at the Faculty of Law at Stellenbosch University (SU), preceding the Global Scholars Academy (GSA) taking place on campus this week. SU's Faculties of Law and of Economic and Management Sciences have partnered with the prestigious Harvard Law School's Institute for Global Law and Policy (IGLP) in the United States to host the GSA in South Africa. (Media release distributed on Friday.)
More than 50 experts from Europe, the US, the UK, and Australia in the fields of law, international law, policy, and economics attended Justice Dambuza's lecture with the theme Inequality: The curse of being on the outside looking in.
Justice Dambuza started her lecture by referring to the looting and rioting incidents in Johannesburg and Durban last year; how the concept of ubuntu has disappeared in that people descend on accident scenes, but not to lend a helping hand; and criminals targeting higher education institutions, especially those in less-developed and poor communities.
Using the riots in Durban as example, she explained how the levels of inequality play out in the country's communities: a young man carrying a basket full of loot which he put in the boot of a “snazzy" Mercedes Benz; the other an elderly lady who was looking through the rubble for food after the rioting subsided. When she was confronted by a news reporter she immediately asked for forgiveness and left the scene without taking anything with her. “These are the main driving forces of criminal conduct: desperate poverty and sheer greed and corruption."
Levels of inequality have worsened
Justice Dambuza outlined that the levels of inequality have worsened since the advent of democracy 30 years ago, and that the Constitution's goals of, amongst others, human dignity, equality, and freedom of trade, occupation and profession, have not been met. “Many of our impoverished communities feel increasingly marginalised, without hope and that they do not belong. They are like aliens living in their own country, convinced that the existing institutions do not serve their interests and needs. “Although it cannot be a standard sentencing factor, judicial officers cannot think away the hopelessness that the vast majority of people live with today," she said.
One of the objectives of the Criminal Law Amendment Act 105 of 1997 was to respond to the outcry of the public about the rising levels of crime, and it was hoped that the heavy sentences that the Act prescribes would serve as a deterrent. “However, almost three decades later there has been no evidence that the crime levels have decreased," according to Justice Dambuza.
Justice Dambuza added that a study by the Law Reform Commission in 2000 found that the emerging sentence patterns could have a major impact on the prison population as longer sentences would lead to prison overcrowding. “In fact, as at March 2022, the prison population stood at 143 223, whereas the bed space allows for only 108 804 prisoners. This could have a major impact on the prisoners' safety and security."
Against this background, the following points could be considered with regard to the sentencing legislation in South Africa:
- The suggestion by Justice Edwin Cameron that judicial officers should avoid custodial sentences for less serious offences should be strongly supported;
- The Law Reform Commission in 2000 still provides a solid foundation for a fresh, rational approach to sentencing with rehabilitative, educational and healing attributes for communities.
- There should be provision for flexible sentencing guidelines developed by an independent sentencing council with judicial officers playing a leading role.
- Restitution and compensation for the victims of offences should be considered as suggested by the Law Reform Commission in the proposed Sentencing Framework Act.
- There should be no impediment to the judiciary also being part of the process of reviewing the current minim sentencing legislation. The country has moved away from the times when the judiciary was completely isolated from other branches of the state and the communities which it serves.
- In dealing with offenders, a more inclusive approach is needed in efforts to combat the effects of inequality, crime and insecurity on the country's communities.