THEORETICAL SCHOOLS OF THOUGHT

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CHAPTER3 PUNISHMENT IN SOUTH AFRICA

In the fourteenth century [it] would have {been] said [that] the devil put such thoughts [as crime] into head[s], now in a post Freudian world it has to be a complex or, to be really up to date, a chemical imbalance. In a hundred years {they will] come up with some completely different explanation … the truths of one age [are] the absurdities of another… (in Sharp 1981:76).

INTRODUCTION

In the previous chapter theoretical schools of thought were discussed in relation to theories of punishment and sentence within the United Kingdom, the United States of America and The Netherlands. The suggestion was made that criminal jurisdictions have adapted their sentencing practice in line with the « oscillations inflicted by changing theoretical stances », and have developed sentencing policies along different paths. Added to this, it was suggested that the human rights movement has provided yet another influence upon theoretical philosophies.
It was shown that in the United Kingdom, judicial legislation has been « updated » in what Thomas (1993) terms « a piecemeal fashion » – in other words the reconsideration and alteration of statutes which are perceived to no longer address the crime problem in that country. In the United States of America, the introduction of a Sentencing Commission has, in some States, provided sentencers with mandatory definitive sentencing guidelines in the form of numerical matrix sentencing grids. The Dutch Code of Criminal Procedure was discussed in order to highlight the influence of the human rights movement upon sentencing policy within the Netherlands.
In this chapter, the study draws upon the ideas expressed within Chapter 2 to look at sentencing in South Africa. The chapter traces the formation of the Republic of South Africa, the evolution of its legal system and the ideological backdrop to sentencing in the country. The chapter gives consideration to theoretical influence on sentencing policy in South Africa, and furthers the debate on the human rights movement within the country, linking the ensuing discussion to the purposes of punishment.

THE UNION OF SOUTH AFRICA
The law in South Africa

In line with the main purpose of this study, which is to present the views of the public of Pretoria on sentencing policy in South Africa, little space is allocated in the study as a whole to the workings of law in the country. However, it is necessary, in order to make sense of the work in totality, to provide the reader with a brief history of the formation of South Africa and its legislation. It should be noted at the outset, that the writer as a criminologist and not a criminal lawyer, is somewhat ill-equipped to write authoritatively in the field of law. What this lack of authority actually means, is best recounted by Van Der Merwe, himself once a practising criminal lawyer now turned criminal law academic at the University of South Africa.
According to Van Der Merwe (1991:1-5)  » … there is unfortunately a gap between … criminology and substantive criminal law …. « . The author highlights what this gap between disciplines means in actuality, by quoting the Viljoen Commission report – paragraph 8.1.3. As justification of the researcher’sill-equipped legal status, this quote is reproduced hereunder in full:
In this country [S.A.] the training at those universities where criminology or penology are taught as subjects, the faculties concerned are more closely affiliated to the faculties of sociology, social science and psychology than to the faculty of law. This is to be regretted. In most overseas countries criminology and criminal law are taught, if not as one subject, then at least as closely related subjects. While today qualifications in sociology, criminology and penology are regarded as distinct recommendations for a good position in the Prisons and Police services, very few practising criminal lawyers, magistrates or judges have qualified in either criminology or penology. Judges are as a rule appointed from the ranks of practising barristers, and whilst it is true that a barrister’s experience is such that, in the course of his career, he accumulates quite a sound and useful knowledge of sentencing principles, it would be preferable if every lawyer who aspires to become a member of the Bench, could acquire a sound knowledge of criminology and penology as academic qualifications.
The unfortunateness of this lack of union is suggested by Van Der Merwe to show that the fields of criminal law and criminology rely upon different methodologies to debate the science of sentencing. Whilst Van Der Merwe argues for a greater co-operation and participation between the two fields, and indicates that they are both dependent on each other, he notes that a differentiation in methods can be related to Olmesdahl’sdistinction between clinical versus statistical methods of measurement and prediction. Using Olmesdahl’swords, Van Der Merwe ( 1991 : 1-7) indicates that:
As a lawyer, one’s training is in the « clinical » approach which relies on the expert’s experience, judgement and in a certain measure, intuition. [Whilst] The statistical approach… involves the mechanical application of data of specific variables in fixed mathematical equations. This is necessary not only to provide useful descriptive summaries of the data but also to attempt to provide causal explanations from the data.
Measured in these terms, the study at hand inextricably falls within the study field of criminology and for this reason, relates to the so called statistical methods of sentencing practice. Therefore, rather than entering into a debate on the specific sanctions and procedures of South African law/sentencing, the discussion to follow revolves around an historical development of penal policy in the country.
However, before embarking upon this route of discussion, it is obligatory (in the light of recent developments contained within the South African Law Commission paper 7 of 30 June 1997 on restorative justice), to defend the thesis’ reliance upon European law as opposed to indigenous law. In this respect, reliance can best be upheld by acknowledging that during the period of research, European law prevailed within South Africa. However, as if by way of confirmation of the words of Sharp (1981) which began this chapter, a new era of sentencing philosophy is dawning in the country and is about to « come up with [something] completely different ». Naude (1997:57) indicates what the lack of difference has meant in this way:
The acceptance of European Jaw which largely repressed the customary laws resulted in victims being neglected and alienated from the criminal justice process with the result that many Africans regard the criminal justice system with suspicion resulting in few benefits for the individual. This negative perception is even more prevalent in South Africa with our apartheid history of discrimination, oppression and unjust laws.
Restorative justice in sentencing aims to re-address customary laws, victim neglect and alienation, and in so doing argues for many of the desires of this thesis. For example it strives to empower people to take part in a meaningful way by actively become involved in the criminal justice process. It focuses upon, amongst other things, the righting of wrongs by holding offenders responsible and supports the compensating of victims for their losses through restitution. This process, is noted in the South African Law Commission report (1997:4) as « Central to the notion of restorative justice … [because it recognises]… the community rather than the criminal justice agencies as the prime site of crime control ». This way of addressing crime in society places emphasis upon the more traditional African principles which are based upon reparation rather than retribution. Naude (1997:58) says that « More emphasis on restorative justice will probably go a long way towards making the South African criminal justice system more democratic and credible to all its people while at the same time recognising the individual dignity of the victim ».
the Law Commission report (Vision 2000) variously makes clear its preference for participatory involvement of all people in the administration of justice, and in particular sentencing. The report proposals variously call for the implementation of victim impact statements and more victim offender mediation whilst, under the heading of « The Way Forward » (1997:47), invites:
… the comments of all parties who feel that they have an interest in this topic or may be affected by the type of measures discussed.. .[as being] of vital importance to the Commission.
Such innovative ideals are to be applauded in the sincere hope that a speedy inclusion of restorative justice within South African sentencing legislation is imminent.
Chapter 3 takes up the historical formation of South Africa  and its legislation.

THE FORMATION OF  THE SOUTH AFRICAN LEGAL SYSTEM  BY  MEANS OF THE HISTORICAL COMMON LAW, LEGISLATION AND THE JUDICIARY

Overview

Two main literature sources have been searched by the researcher for this section on the formation of South Africa and the development of its laws and constitution, viz., Hahlo & Kahn (1960) and du Plessis & Kok (1981). Although both sources are relatively old, they are widely believed to offer the reader a factual account of The Union of South Africa and its legislative evolution. Justification for an almost total reliance upon these authors for this knowledge on South Africa, lies in the researcher’s belief that the facts of history are, in this particular instance, not debatable. Hahlo and Kahn (1960) provide a comprehensive background to the historical foundation of what they later term the Genesis of South African Law. It will serve no purpose to repeat this background in full, and yet, it is not possible to proceed successfully until some historical points have been noted. For this reason, a brief historical account of the arrival of law in South Africa is herein provided.

The essentials of South African law

In South Africa the law is divided into two types of law, viz., common law and statute. According to du Plessis & Kok (1990:24), common law in South Africa can be defined as law which has not been enacted by Parliament or any other body with law-making powers. Common law came from Roman-Dutch law in the Corpus Juris Civillia together with an acknowledgement of the influential role played by judicial precedents. The authors indicate that when considering the nature of common-law, certain crimes have been crimes for centuries – for example murder – and yet no Act of Parliament enforces this crime. The process of stare decisis provides for certainty in the administration of justice because binding precedents ensure that « decisions must stand »: such decisions are, in fact, non-negotiable.
Interpretation of the Roman-Dutch law within the Corpus Juris Civilis fell to the superior courts of the Cape and the various provinces, whereby over the period from « circa 1830 until the present day », vast amounts of binding precedent have been accumulated and now form the body of common law in the country.
The law of statute is the law as contained in the enactments of law-making bodies, a law which is either made through an Act of Parliament or its empowered subsidiaries. In this respect legislation (statute) can be made by subordinate law-making bodies, for example town councils who pass by-laws applicable to their municipal domains. However, subordinate laws (although sanctioned by Parliament through the autonomy given to subordinate law-making bodies) can, if considered necessary, be declared by the high court as invalid: interpretation of statute is the sole prerogative of the high court of South Africa. After which, high court interpretation becomes the binding precedent. This type of procedure allows judges like Lord Radcliff (in Hall 1987:141) to suggest that:
… the law has to be interpreted before it can be applied and interpretation is a creative activity….
Such activity is, according to Radcliff, not merely born of knowing facts, but is rather down to … long and professional experience, with prepared approaches and formed attitudes of mind … which impinge upon one’s[the high court judge] ability to interpret ». This point of Radcliff’sis taken further by Lord Denning (in Hall 1987: 134) when he indicates that:
The truth is that the law is uncertain. It does not cover all the situations that may arise. Time and again practitioners are faced with new situations where the decisions may go either way. No one can tell what the law is until the courts decide it. The judges do everyday make law, though it is almost heresy to say so.
This is why statutory law is, according to Du Plessis and Kok (1981 :27),  » … legislation made by legislative bodies and interpreted by the superior courts ». Interpretation is, as noted above, imbued with what we will see later in this chapter Nicholson (1992:52) calls  » … the judges’ unique psyches, emotional make-up and biographies of social experience ». And, furthermore, the notion of interpretation is intricately linked to the concept of judicial authority. This point will be taken up later in the chapter, but for the moment, a very brief look at the history of penal development in South African is undertaken.

 Historical background

South Africa was occupied by the Dutch East India Company in 1652 when on April 7 of that year, Jan van Riebeeck stepped ashore and formally took occupation of the Cape. Intended as a half-way house for trade between the Netherlands and the Dutch East Indies, the Dutch settlement was ostensibly to refurbish the Dutch ships with provisions during their voyages. The Cape was ruled by the Company for the next 150 years. Colonial boundaries gradually increased until the end of the eighteenth century, when, with the arrival in September 1795 of the British fleet at Table Bay, the Dutch East India Company was forced to cancel its charter by signing Articles of Capitulation of Rustenburg. This capitulation enabled England to secure a vital sea route to India and, at the same time, to exert an English influence on the economic and legislative spheres of the Dutch settlement.
British colonisation split the White population of South Africa between English and Dutch nationality. The rift which developed not only divided the two White sections of the community at the Cape, but also the White and non-White. This chain of events was to significantly affect the legal history of South Africa. With English occupation came various changes, for example in 1808 the English Act for the abolition of the slave trade was enacted and in 1828 Ordinance No.50 gave the free coloured population in the Cape full civil rights.
In 1835 the Boer Great Trek and the battle of Blood River paved the way for the first Boer republic in Natal during the year 1838. By the year 1843, legislative undertakings by the British South Africa Company, resulted in the emancipation of slaves, whilst local monopolies on internal trade were abolished and external trade restrictions were eased. Settlers began arriving from Britain, one of whom in the late eighteen-eighties was Cecil Rhodes in pursuit of what Hahlo & Kahn (1960:6) tell us was  » … his dream of a British African Empire from Cape to Cairo … « . Settlements formed themselves into loose federations under the name of the Vereenigde Band van het gehee/ Maatschappy van deze zyde van de Vaa/rivier These federations were afforded tt’1e right to manage their own affairs and were recognised as autonomous by the British Government in the Sand River Convention of 1852. By 1853 the title of Zuid-Afrikaansche Republiek was adopted for the new state.

Chapter 1: Introduction
1.1 OVERVIEW
1.2 STATEMENT OF THE PROBLEM
1.3 THE MOTIVATION FOR PUBLIC INVOLVEMENT
1.4 THE AIMS AND RATIONALE OF THE STUDY
1.5 THE CENTRAL RESEARCH THEMES (HYPOTHESES)
1.6 THE DEFINITION OF KEY CONCEPTS
1.7 THE RESEARCH METHODOLOGY
1.8 THE SAMPLE PROCEDURE
1.9. THE FIELDWORK
1.10 STATISTICAL ANALYSIS
1.11 THE CHAPTERS
1.12 CONCLUSION
Chapter 2: Historical theories of punishment
2.1 INTRODUCTION
2.2 THEORETICAL SCHOOLS OF THOUGHT
2.3. THE DUTCH CODE OF CRIMINAL PROCEDURE: POLICE APPREHENSION AND REMAND DETENTION IN THE NETHERLANDS
2.4. THE PURPOSES OF PUNISHMENT
2.6 THE CRIMINAL JUSTICE SYSTEM AND SENTENCING POLICIES OF THE
UNITED KINGDOM AND THE UNITED STATES OF AMERICA
2.6 CONCLUSION
Chapter 3: Punishment in South Africa
3.1 INTRODUCTION
3.2 THE UNION OF SOUTH AFRICA
3.3 THE FORMATION OF THE SOUTH AFRICAL LEGAL SYSTEM BY MEANS OF THE
HISTORICAL COMMON LAW, LEGISLATION AND THE JUDICIARY
3.4 THE DEFINITION OF IDEOLOGY
3.5 CONCLUSION
Chapter 4: An evaluation of the different forms of punishment 
4.1 INTRODUCTION
4.2 ALTERNATIVE TYPES OF SENTENCE
4.3 THE PUBLICS’ CHOICE OF SENTENCE
4.4 PUNISHMENT PREFERENCES FROM THE 1984 BRITISH CRIME SURVEY
4.5 CONCLUSION
Chapter 5: The research findings: respondent fear of victimisation and seriousness scores for specific crimes
5.1 INTRODUCTION
6.2 DEMOGRAPHIC PROFILE OF RESPONDENTS
5.3 VICTIMS OF CRIME
5.4 LIKELIHOOD OF BECOMING A VICTIM OF CRIME
5.5 VIEWS ON PUBLIC INPUT INTO SENTENCING
5.6 RESPONDENT SERIOUSNESS SCORES FOR SPECIFIC CRIMES
5. 7 CONCLUSION
Chapter 6; The research findings: respondent views on sentencing. mitigating factors and decriminalisation 
6.1 INTRODUCTION
6.2 THE SENTENCING DEBATE REVISITED
6.3 SENTENCING PREFERENCE: AN OVERVIEW OF THE SOUTH AFRICAN
RESEARCH FINDINGS
6.5 THE EFFECTS OF MITIGATING CIRCUMSTANCES
6.6 DECRIMINALISATION OF CERTAIN CRIMES
6. 7 OVERALL RESEARCH COMPARISON
6.8 CONCLUSION
Chapter 7: Summary of the research findings and recommendations 
7.1 OVERVIEW
7.2 THE CHAPTERS
7.3 DIVERSION: A CRIME PREVENTION METHOD
7.4 THE DUTCH CRIMINAL JUSTICE SYSTEM: DIVERSIONARY METHODS
7 .5 OTHER DIVERSIONARY METHODS
7.6 OTHER PRECAUTIONARY IDEAS
7.7 A PROPOSED SENTENCING GUIDE (SEVERITY INDEX) FOR SOUTH AFRICA
7.8 CONCLUSION
BIBLIOGRAPHY
GET THE COMPLETE PROJECT
PUBLIC OPINION ON SENTENCING IN PRETORIA