CONTEXTUAL PHILOSOPHY OF PUNISHMENT

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The death penalty in South Africa

The history of the death penalty is as old as society, with the corresponding movement for its abolishment or limited application.512 In South Africa during the early colonial years there were public hangings at the Cape. Since those years the method of execution in South Africa has been hanging by the neck, except for the 1914 execution of Jopie Fourie, found guilty of treason, who was executed by firing squad during war time.513 Roman Dutch Law spells out several crimes punishable by death other than murder, which required evidence of grave circumstances.514 The Criminal Procedure and Evidence Act of 1917 specified capital crimes and section 338 provided for mandatory hangings in the case of murder.515 Capital punishment in respect of rape and treason were at the discretion of the sentencing court.
By 1935 section 61 of the General Law Amendment Act, Act 46 of 1935, introduced some shifts from mandatory capital punishment for murder with the idea of ‘extenuating circumstances’.516 The meaning of the term ‘extenuating circumstances’ has to a large extent depended on the interpretation and understanding of each individual judicial officer trying capital crimes.517 The Act broadly considers extenuating circumstances to include the age factor (under 18), lack of use of dangerous weapons, personal circumstances, first offender, state of mind, and aggravating and mitigating factors in the context of death penalty. Currin cites the S v Lembete518 judgment to illustrate the complex nature of extenuating circumstances, as it places a duty on the accused to prove its presence in respect of a case.519

Sentences other than corporal and capital punishment

From 1950 until 1980s, in South Africa sentences other than corporal and capital punishment tended to constitute imprisonment, and did not reflect a balanced use of other sentencing options.552 This assertion corresponds with empirical sentencing patterns which show that corporal punishment tended to be coupled with imprisonment and was related to prison population rates.553 In terms of section 329 of the Criminal Procedure Act, Act 56 of 1955, South African sentencing options ranged from the death penalty to imprisonment with or without solitary confinement, periodic imprisonment, declaration as a habitual criminal, whipping, the imposition of a fine, community service, reform school, a suspended or postponed sentence, caution or reprimand and probationary supervision.554 By 1958-1959 the daily average number of prisoners in detention was 49 886. In 1959-1960 the number rose to 52 956, in 1960-1961 it was 55 762, in 1961-1962 it was 62 769, in 1962-1963 it was 66 575, and by 1963-1964 it was 70 351.555 These figures reflect the trend of a growing prison population, although the length of sentences may have had an impact on this picture.
The Commissioner of Prisons reported that from July 1971 to June 1972, 440 058 sentenced.556 Midgley and Newman state that in 1971-1972 approximately 23 persons were sentenced to life imprisonment and 1 085 persons were sentenced to indeterminate periods of imprisonment by the courts. In the light of these figures Midgley and Newman reflect that, in respect of child offenders, during judicial decision-making the notion of criminal responsibility with regard to age was outweighed by the seriousness of the offence. Cases brought before the juvenile court were referred to the higher courts, and 65% of cases included murder, rape and serious assault. Few property crimes of a more serious nature were tried by the higher courts. The reasoning was that the seriousness of a case would often lead to a heavy penalty and this often resulted in a situation where juveniles were tried as adults.557
By 1970-1971 it was reported that 474 065 sentenced persons had been admitted, and the corresponding figure for 1968-1969 had been 496 071. In 1965 there was minor drop compared to previous years. For example, the increase between 1965 and 1969, a period of less than five years, amounted to 78%. The 1971-1972 figure reflects a considerable improvement on that of 1968-1969, with a decrease of 55 149 in the sentenced prison population.558 These figures reflect the empirical sentencing pattern of the imposition of custodial sentence during 1950s to 1970s, and present the picture with regard to sentencing trends for both young and adult offenders.

South African sentencing trends, patterns and shifts with respect to serious crimes

By the 1980s there was an unprecedented resurgence of political protest, mostly led by the youth, against repressive state measures, with rapid participation in mob or crowd killings in the townships of those associated with state agencies.578 By this time South African sentencing was characterised by wide judicial sentencing discretion with few rights for child offenders.579 In another jurisdiction Tonry takes this view further and states that unstructured wide discretion tended to lead to unwarranted sentencing disparities.580 Skelton suggests that, similarly to the 1970s, during the period 1984 to 1988 judicial officers applied the doctrine of common purpose widely for conviction of crowd-related murder in township violence. In the light of these developments, the number of prisoners on death row increased and the majority of those sentenced to death had been convicted for murder.581
During this period section 277 of the Criminal Procedure Act, Act 51 of 1977, provided for eleven capital crimes, more than provided for in Act 9 of 1958. The Criminal Procedure Act of 1977 continued to provide a mandatory death penalty for the crime of murder unless extenuating circumstances are found. Capital punishment was prohibited in respect of persons under the age of 18.582 This relates to the idea that punishers should come to grips with the age factor of the offender in their assessment of the degree of culpability, in lieu of mere focus on the seriousness of the offence. Sentencing patterns suggest that the obligatory provision for the factor of extenuating circumstances tended to be narrowly defined, based on factors and the degree of moral blameworthiness at the time of the commission of the crime,583 although section 277(2) of the Criminal Procedure Act, Act 51 of 1977, permited the sentencing court to impose an alternative sentence other than the death sentence where it found extenuating circumstances.

CHAPTER 1
1 INTRODUCTION
1.1 INTRODUCTION
1.2 MOTIVATION AND RATIONALE: the problem of disparities in judicial sentencing approaches
1.2.1 Sentencing patterns, trends and shifts in respect of persons under the age of 18 and adults convicted of serious crimes
1.3 HYPOTHESIS
1.4 AIM OF THE STUDY
1.5 OBJECTIVES OF THE STUDY
1.6 DEMARCATION OF THE RESEARCH FIELD.
1.7 RESEARCH DESIGN AND METHODOLOGY
1.8 ANALYSIS OF DATA.
1.9 CONCEPTUAL CLARIFICATION
1.10 LIMITATIONS OF THE STUDY.
1.11 OVERVIEW OF THE STUDY.
CHAPTER 2 SENTENCING THEORIES ON PERSONS UNDER THE AGE OF 18 AND ADULTS CONVICTED OF SERIOUS CRIMES
2.1 INTRODUCTION
2.2 CONTEXTUAL PHILOSOPHY OF PUNISHMENT
2.3 DESERT SENTENCING THEORY
2.3.1 Justifiable deserved punishment to persons under the age of 18 convicted of serious crimes.
2.3.2 Treating serious cases on merit with regard to persons under the age of 18
2.4 REHABILITATION SENTENCING THEORY
2.4.1 Rehabilitation approach in sentencing decisions in respect of persons under the age of 18 convicted of serious crimes
2.5 RESTORATIVE THEORY.
2.5.1 Relationship-centred sentencing to persons under the age of 18 convicted of serious crimes.
2.6 DETERRENCE SENTENCING THEORY.
2.6.1 Individual deterrence to persons under the age of 18 convicted of serious crimes.
2.6.2 General deterrence to persons under the age of 18 convicted of serious crimes
2.7 INCAPACITATION SENTENCING THEORY.
2.7.1 Sentencing predictions in respect of persons under the age of 18 convicted of serious crimes
2.8 Social theories of sentencing
2.8.1 Sociological perspectives on punishment
2.8.2 Community punishments
2.9 JUDICIAL SENTENCING DISCRETION AND DECISIONS IN RELATION TO YOUNG AND ADULT OFFENDERS
2.10 INDEPENDENT JUDICIAL SENTENCING, IMPARTIALITY AND ACCOUNTABILITY IN SENTENCING DECISIONS WITH REGARD TO PERSONS UNDER THE AGE OF 18 AND ADULTS CONVICTED OF SERIOUS CRIMES
2.11 ANALYSIS.
CHAPTER 3. AN ANALYSIS OF SENTENCING PATTERNS, TRENDS AND SHIFTS IN SOUTH AFRICA BETWEEN 1950 AND 2009 OF ADULTS AND PERSONS UNDER THE AGE OF 18 CONVICTED OF SERIOUS CRIMES
3.1 INTRODUCTION
3.2 SOUTH AFRICAN SENTENCING PATTERNS, TRENDS AND SHIFTS IN A BROADER CONTEXT
3.3 THE DEATH PENALTY IN SOUTH AFRICA.
3.4 SENTENCES OTHER THAN CORPORAL AND CAPITAL PUNISHMENT.
3.5 SOUTH AFRICAN SENTENCING TRENDS, PATTERNS AND SHIFTS BETWEEN 1980 AND 1996 WITH RESPECT TO SERIOUS CRIMES.
3.6 SENTENCING APPROACHES AFTER THE ADOPTION OF THE CONSTITUTION, FROM 1996 TO 2009
3.7 THE RELEVANCE OF CRIMINAL LAW AMENDMENT ACT, ACT 105 OF 1997, TO SENTENCING PERSONS UNDER THE AGE OF 18 AND ADULTS CONVICTED OF SERIOUS CRIMES
3.8 THE PRINCIPLE OF DOLI INCAPAX IN JUDICIAL SENTENCING DECISIONS.
3.9 ANALYSIS
CHAPTER 4  ANALYSIS OF EMPIRICAL JUDICIAL SENTENCING DECISIONS
4.1 INTRODUCTION.
4.2 BACKGROUND TO THE SENTENCING DATA
4.3 1999 AND 2002 WYNBERG REGIONAL COURT CASES – JUDICIAL SENTENCING DECISIONS
4.4 CAPE HIGH COURT JUDICIAL SENTENCING DECISIONS
4.5 JUDGMENTS DELIVERED AND IMPOSED SENTENCES.
4.6 JUDICIAL OFFICERS: REGIONAL MAGISTRATES AND CAPE HIGH COURT JUDGES
4.7 JUDICIAL SENTENCING AND THE AGE FACTOR
4.8 SEVERITY OF PUNISHMENT IN RESPECT OF OFFENDERS UNDER THE AGE OF 18 AND ADULTS CONVICTED OF SERIOUS CRIMES
4.9 SENTENCING SERIOUS CRIMES
4.10 SENTENCING AND PREVIOUS CONVICTIONS.
4.11 SEVERITY OF PUNISHMENT IN RESPECT OF OFFENDERS UNDER THE AGE OF 18 AND ADULTS CONVICTED OF SERIOUS CRIMES
CHAPTER 5  CONCLUSIONS AND RECOMMENDATIONS FOR JUDICIAL APPROACHES TO SENTENCING PERSONS UNDER THE AGE OF 18 AND ADULTS CONVICTED OF SERIOUS CRIMES
BIBLIOGRAPHY

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AN ANALYSIS OF JUDICIAL SENTENCING APPROACHES TO PERSONS CONVICTED OF SERIOUS CRIMES