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[2013] ZAWCHC 67
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S v Dikqacwi and Others (SS49/2012) [2013] ZAWCHC 67 (15 April 2013)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: SS49/2012
Before: The Hon. Mr Justice Binns-Ward
In the matter between:
THE STATE
and
THAMSANQA DIKQACWI
..........................................................................................
1
st
ACCUSED
THANDO ABRAHAMS
................................................................................................
2
nd
ACCUSED
LUZUKO DUMA
...........................................................................................................
3
rd
ACCUSED
SENTENCE JUDGMENT DELIVERED: 15 APRIL 2013
___________________________________________________________________________
BINNS-WARD J:
It is often said that in criminal proceedings the determination of
an appropriate sentence can present the most difficult challenge
for
the judicial officer, and so it has proved in the current case.
The accused have been convicted of serious offences. The assaults
committed against the complainants were of a serious nature,
especially that upon the complainant in count eight, who was
rendered unconscious as a consequence. The kidnapping charges on
which the accused were convicted were inextricably connected with
the assaults. Both categories of offence were bound up with
each
other in the accuseds’ conduct, which was in substance a
manifestation of vigilantism. The same can be said in respect
of the
count of housebreaking on which accused 1 and 3 were convicted. The
accused took it upon themselves to investigate and
deal with
allegations that might have implicated the complainants in the
commission of crimes of theft and the impersonation
of police
officers in order to rob members of the community. The assaults were
perpetrated over an extended period on the day
in question and in
circumstances which showed a deliberate and brazen disregard, not
only for the complainants’ individual
rights of liberty,
dignity and bodily security, but also for the rule of law. All the
indications are that this course of conduct
was premeditated. Thus
the emotive effects on the behaviour of an individual that an
inflamed crowd of persons can have, and
which are referred to in the
literature on mob justice and vigilantism placed before the court,
and which it is argued might
reduce the blameworthiness that should
be ascribed to participants in mob justice, did not, in my view,
play a material role
in the accuseds’ conduct, although I
accept that once embarked upon, the course of conduct did develop a
certain mob justice
associated momentum. Realistically, it also
cannot be overlooked that the position would probably have been more
serious had
it not been for the fortuitous arrival of the police at
a stage when two of the complainants were being presented by the
accused
to an angry mob.
Considered as a factor in isolation from the other factors that have
to be taken into account in determining an appropriate sentence,
there is no doubting that the offences of which the accused have
been convicted were of such a character as would merit a substantial
sentence of imprisonment. There are, however, other factors that
have to be weighed in the balance. There are the interests of
the
community - which includes matters such as victim impact, the need
for punishment to contain an appropriate element of retribution
to
sustain confidence in the effectiveness of criminal justice and
affording some measure of deterrence, while also offering
sufficient
opportunity for rehabilitation and reform for the offender - and the
individual characteristics of the accused;
S v Zinn
1969 (2)
SA 537
(A). Where the offenders are the sole or main providers for
dependent children, as is the case in the current matter, that is
also something that must be considered in the determination;
S v
M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC);
2007 (2) SACR 539
;
2007 (12) BCLR 1312.
Before turning to address
those other factors in the current context, something more needs to
be said about the nature of the
offences.
There is nothing to indicate that the accused committed the crimes
for personal gain or out of a particular animus against the
complainants, who were essentially unknown to them. It is evident
that the crimes were committed in a peculiar social context.
The
commission of the crimes is a manifestation of a broad problem
affecting a large section of South African society, notably
those
living in the widely impoverished, densely populated and
under-resourced townships in our cities like Khayelitisha and
Philippi, that is of persons in communities taking over and carrying
out themselves the functions that in a properly functioning
society
would be discharged by the criminal justice system – the
police and the courts. One is made aware of instances
of mob justice
and vigilantism almost daily through the media. Furthermore,
although its establishment is matter of controversy
and the subject
of pending litigation, it is well-known locally that the provincial
government has seen fit to appoint a commission
of enquiry headed by
a retired Constitutional Court judge and a former National Director
of Public Prosecutions into the causes
and consequences of the
alleged shortcomings of the criminal justice system - in particular
policing - in the Khayelitsha area
of Cape Town. Counsel on both
sides made passing references to the existence of the commission.
This, if nothing else, supports
the profile of the problem as a
salient current issue. Indeed, more than a decade ago, the problem
was described in the following
terms in this court’s judgment
in
S v Schrich
2004 (1) SACR 360
(C), to which Ms
Galloway
for the State referred in her argument:
The learned authors
[W Schärf and D Mina in
The Other Law: Non-State Ordering in South Africa
(Juta) 2001]
outline the non-State ordering of South Africa by making
the following comments at 6 of the work:
'Its [the State's] dilemma is living up to the promises
of a very liberal Constitution by having a comprehensive embrace of
all
forms of ordering under the Constitution but not being able to
exert sufficient power to protect its citizens from crime to a
satisfactory
degree. The irony is that the liberal State was supposed
to reduce the need for non-State forms of ordering but the inability
of
the transforming State to rise to the level and scope of service
delivery has had the opposite effect. Non-State forms of ordering
have escalated considerably since 1994. Six years after the
commencement of democratic rule the inclination on the part of civil
society to perform roles that would normally be the exclusive domain
of the police (at worst private security) is huge. In the
absence of
the State's ability to cope, citizens have appropriated that function
in many of the townships. This is demonstrated
most dramatically in
the Western Cape where a group called People Against Gangsterism and
Drugs (Pagad) has taken it upon itself
to deter drug dealers from
continuing with their business, failing which, they murder them.
Similarly, in the African township of Guguletu outside
Cape Town, taxi drivers became new administrators of street justice
by publicly
flogging suspected criminals and parading them along the
streets stripped of their clothes. This was done to the cheers of
frustrated
community members. In other parts of the country
vigilantism has developed very rapidly since 1994, thus the slow pace
of the transition
weakens the State's moral authority to clamp down
on extra-state ordering initiatives, even if they fall manifestly
into the realm
of vigilantism. The vigilantes are seen to be
achieving that which the State ought to but cannot do, namely,
protecting ordinary
citizens from unacceptably high crime
(at 365A-E)
Without objection from the State, counsel for accused 2, Ms
Arnott
,
put in a paper by Divya Singh of the School of Criminal Justice at
the University of South Africa, ‘
Resorting to Community
Justice when State Policing Fails: South Africa
’,
published in
Acta Criminologica
18(3) 2005. The content of
the paper articulates that the conduct in which the accused engaged
is believed to be a manifestation,
amongst other things, of
seriously eroded confidence in the justice system by certain,
invariably historically deprived, communities.
According to the
paper, these sections of the population lose all confidence in
resort to the formal mechanisms of the criminal
justice system due
to the effects of a number of problems in the system, such as
inadequate resourcing of policing, corrupt and/or
ineffective
policing; the slow and unresponsive court system characterised by
the frequent withdrawal of criminal cases and the
release of
offenders back into the community on what is described as ‘easy
bail conditions’, as well as other issues.
This is not the
place to determine the merit or lack thereof in the suggested bases
for this societal response. The evidence
adduced in the case was in
any event far from adequate to qualify this court to attempt the
exercise. The investigating officer’s
evidence did, however,
confirm the extent of the problem in Khayelitsha. He described the
significant portion of his caseload
that was given over to what he
called ‘bundu court’ matters. He also explained the
difficulties encountered with
the investigation and prosecution of
such cases due to the uncooperative attitude of witnesses and the
public; something that
was manifest in the current case in the
evasion by one of the complainants of the service of a subpoena and
the failure by his
sisters to comply with their subpoenas.
The paper by Professor Singh records that vigilantes are seen by
many in the communities in which the phenomenon of vigilantism
and
mob justice occurs as upstanding and respectable members of the
community, and indeed see themselves as serving the interests
of
their community. On reflection, even if wholly unacceptable, this
much is understandable in the context of a perception by
a community
that the formal and constitutionally established criminal justice
system is not functioning. As Ackermann J
observed in
S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (2) SACR 1
(CC),
1995 (3) SA 391
;
1995 (6) BCLR 665
, at para [168] at the outset of constitutional
democracy in this country:
Members of the public are understandably concerned,
often frightened, for their life and safety in a society where the
incidence
of violent crime is high and the rate of apprehension and
conviction of the perpetrators, low. This is a pressing public
concern.
However important it undoubtedly is to emphasise the
constitutional importance of individual rights, there is a danger
that the
other leg of the constitutional State compact may not enjoy
the recognition it deserves. I refer to the fact that in a
constitutional
state individuals agree (in principle at least) to
abandon their right to self-help in the protection of their rights
only because
the State, in the constitutional State compact, assumes
the obligation to protect these rights. If the State fails to
discharge
this duty adequately, there is a danger that individuals
might feel justified in using self-help to protect their rights. This
is not a fanciful possibility in South Africa.
Now in
Schrich
the phenomenon of vigilantism was dealt with
in a sentencing context in connection with the interests of the
community component
of the
Zinn
triad. It was recognised that
the phenomenon is fundamentally incompatible with the sort of
society that the values of the Constitution
seek to establish, and
thus cannot be condoned and tolerated. In the result it was
considered that severe punishments were indicated
for offences
committed as part of vigilantism. There can be no quarrel with that,
in principle. The same approach, as a matter
of principle, had
indeed already been adopted in both the majority and minority
judgments of the Supreme Court of Appeal in
S v Thebus and
Another
2002 (2) SACR 566
(SCA). The latter case was one in
which the prescribed minimum sentencing regime in terms of the
Criminal Law Amendment Act 105 of 1997
applied. In a case, like the
current matter, where a prescribed sentencing regime does not apply,
the approach still begs the
question what form of severe punishment.
It is by no means axiomatic that lengthy terms of direct
imprisonment afford the only
appropriate response. To incarcerate
persons who are generally functioning well within society - albeit a
dysfunctional society
- ordinarily staying on the right side of the
law, holding down stable employment and providing for their
dependents, for a lengthy
period risks returning to the community
damaged, and even more problematic persons at the end of the
exercise, and will not obviously
achieve the generally accepted
objects of punishment. Where such persons are responsible for the
maintenance of dependants, the
adverse social consequences of
incarceration are obviously yet greater. Incarceration will not
address the causes of vigilantism
and is unlikely, in my view, to
provide an effective deterrent. On the contrary, having regard to
the reported attitude of the
affected communities towards
vigilantes, it might well conduce to a greater alienation of the
members of such communities from
the formal criminal justice system.
They might see lengthy terms of imprisonment as indications of the
system being harsh on
those who they see as the ones trying to do
something effective about crime while it is otherwise soft on crime,
or ineffective
about it. In recording this I should not be
misunderstood to suggest that such a view by the community should
deter the courts
from imposing imprisonment if it is appropriate. I
mention it mainly to explain my view that the context of the
offences is not
one that if the accused were not committed to direct
imprisonment the community’s estimation of the criminal system
would
be further eroded. The context gives the remarks of Schreiner
JA in
R v Karg
1961 (1) SA 231
(A) at 236A – C a
somewhat anomalous effect. Schreiner JA, observing half a century
ago that that the retributive aspect
of punishment had tended to
yield ground to the aspects of prevention and correction, cautioned
‘
But the element of retribution, historically important, is
by no means absent from the modern approach. It is not wrong that
the
natural indignation of interested persons and of the community
at large should receive some recognition in the sentences that
Courts impose, and it is not irrelevant to bear in mind that if
sentences for serious crimes are too lenient, the administration
of
justice may fall into disrepute and injured persons may incline to
take the law into their own hands. Naturally, righteous
anger should
not becloud judgment
’. In the current context, it is the
maintenance of constitutional values rather than the indignation of
the affected community
that requires that the retributive or
punitive aspect of punishment be accorded due weight. The challenge
is how to achieve that.
In weighing an appropriate sentence I think it is necessary to
acknowledge that crimes committed in the context of vigilantism
will
often be different from the same acts perpetrated out of greed or
delinquency. While their gravity should not be seen as
being
diminished on that account, the context does, I think, justify
consideration of a different response when it comes to sentencing;
one determined with especial regard to the need to promote rather
than retard societal reconstruction and rehabilitation.
The interests of the community must be assessed applying
constitutional values. Thus there can be no question that any
sentence
that would appear to condone vigilantism, even if its
causes are understood, would be inappropriate. A clear message has
to be
sent that the conduct is unacceptable and that it will be
visited with the sanction of the law. The values of the constitution
do not, however, enjoin indiscriminately visiting brutal and
brutalising behaviour in the context of vigilantism with
uncompromising
severity and formalised inhumanity. There should
rather, as far as possible, be an endeavour, in the determination of
punishment,
a striving towards a humanising and debrutalising
result. Meeting the problem and its effects with unmitigated
harshness will
do nothing to address the underlying causes, and does
not serve the interests of the community, or promote the realisation
of
a society based on constitutional values. Vigilantism results in
the inappropriate and primitive treatment of crime and offenders,
it
also results, because of its often arbitrary character, in the
unconstitutional and inhuman treatment of innocents and their
families. These are factors that require that punishment must be of
a nature that objectively promotes confidence in the justice
system.
They are not factors that justify something akin to an eye for an
eye approach, or indeed any approach that does not
give an
appropriately balanced treatment of the
Zinn
triad. The right
approach to the determination of punishment in the circumstances
requires that appropriate consideration be given
to the full range
of available sentencing options provided by the law.
Accused no. 1 is 27 years of age, having been born on
24 September 1985. He is the youngest of four siblings. He
comes from a stable and closely knit family background and grew up
in Oudtshoorn. His father was employed by a petrol company and
was a
pastor in a church. His mother was a domestic worker. Both his
parents are retired, but remain active in the activities
of their
church. The accused completed grade 12 at school and thereafter
enrolled at Unisa for a four year course of study towards
a
baccalaureate in theology. He dropped out in his first year due to
financial constraints. He thereafter completed a one year
security
management course in Port Elizabeth, which facilitated his
subsequent acquisition of employment by the South African
Air Force
in 2005, where he has worked as an entrance controller. He retained
his employment there until his suspension in January
2012 as a
consequence of his arraignment in connection with the current
matter. He achieved promotion from the rank of airman
to that of
corporal. He has maintained a fixed abode at the same address in
Philippi in Cape Town since 2005. It is a one-bedroomed
brick house
consisting of a living room, kitchen, inside bathroom and a garage.
He lives there with his girlfriend, with whom
he has one child born
on 5 February 2012. He has been in a relationship with his
girlfriend for more than five years; she is
employed at Truworths at
Century City. He has a son by a previous relationship, who was born
on 22 September 2002, and who
lives with his former girlfriend
in Oudtshoorn, towards whose care he contributes financially. He is
a congregant of the Methodist
Church in Nyanga, where he regularly
attends Sunday services and in addition regularly acts as a
preacher. He has no previous
convictions; on the contrary he is
described in a report by a social worker from the Western Cape
Government Department of Social
Development as having lived ‘an
exemplary lifestyle’ thus far.
As a consequence of his convictions in the current matter Accused 1
will be discharged from the Air Force. Although he has been
receiving his salary during the period he has been on suspension,
the court was informed that payments received by him while
under
suspension will be deducted from his pension entitlement.
The circumstances of Accused 1 have been assessed by a correctional
official and a social worker. He has been found to be suitable
candidate for correctional supervision and, notwithstanding that he
persists in denying his complicity in the offences of which
he has
been convicted, is reported to be willing to perform community
service, submit himself to rehabilitation programmes and
to comply
with all the conditions of a community-based sentence.
Accused 2 is also from Oudtshoorn. Indeed all three accused are from
that town. Their friendship is founded on their having grown
up
there together. Accused 2 was born on 14 May 1981. He is
currently cohabitational relationship of two and a half years’
standing. He has three children from two previous relationships. The
children are aged 13, nine and seven, respectively. The
first two,
who were born of the earlier relationship, live with and are cared
for by the accused’s parents in Oudtshoorn.
Their mother
apparently shows no interest in the children and has no contact with
them. The youngest child lives with her mother,
to whom it would
appear the accused was previously married for a short time. The
accused is the sole financial provider for all
three children.
He comes from a relatively family stable background. Both his
parents held down employment during their working lives, although
his father had problems with alcohol, which led to his mother
sometimes leaving the family home for short periods to stay with
her
parents. The accused’s five siblings are all employed and live
at various places in the Western Cape, apart from the
youngest who
is in grade 11 at high school in Oudtshoorn.
The accused commenced his school career at the early age of five
years. He completed his primary education with no difficulty
and was
reportedly a good performer. His early entry into the education
system complicated the commencement of his high school
education,
when he was considered too young to meet the admission requirements
of the Oudtshoorn High School. As a consequence
he was required to
repeat his grade 7 year, which he did at a different primary school.
Being artificially held back a year and
then proceeding a year below
his peers at primary school had an adverse effect on the accused and
he did not perform as well
at high school, failing grade 10, and
deciding to drop out.
Accused 2 thereafter enrolled at the South Cape College (George
campus) in order to obtain his matric certificate. Unfortunately
during that year he was involved as an unlicensed driver in a motor
vehicle collision in which one of his friends was killed.
As a
consequence of the incident, which unsurprisingly had a profound and
enduring psychological impact on the accused, he was
convicted of
culpable homicide, driving a vehicle while the alcohol content in
his blood exceeded 0,08 grams per 100 ml, and
driving without a
driver’s licence. The event also caused him not to complete
his course at the South Cape College. He
was sentenced to two years’
imprisonment and released under correctional supervision after
serving four months of the sentence.
That period of his life (he was
between 17 and 20 at the time) was also characterised by the use of
cannabis. It appears that
he resorted to the drug to alleviate the
post traumatic symptoms he was experiencing as a consequence of the
motor vehicle collision
and its aftermath. The accused’s
report that he has been drug-free for many years was confirmed on
immunoassay urinalysis
testing administered by personnel from the
clinical unit of the National Institute for Crime Prevention and the
Reintegration
of Offenders (NICRO) earlier this month. I do not
regard the accused’s previous convictions as relevant to the
determination
of sentence in the current matters. Indeed counsel for
the State, quite reasonably, did not contend otherwise. He will thus
be
treated for sentence in this case as a first offender.
Accused 2 has participated in a number of self improvement courses
during the period from 2002 to 2012:
Work Opportunity Programme (Kolping Society of South Africa) - 2002
Computer Fundamentals Course (RPC Data South Africa) – 2004
National Certificate: Municipal Finance Administration (South Cape
College) – 2006
National Certificate: Local Government Finance (Local Government
Sector Education and Training Authority) – 2007
Course on conflict management (CBLM Training Solutions) – 2008
Business communication skills programme (BPG) – 2008
Certificate in First Aid (The SA Red Cross Society) – 2010
Lours Group Management Development Programme 2 (University of
Stellenbosch, USB Executive Development Ltd) – 2012
He has held down fixed employment in successive positions since July
2002 until February 2013. His employers have included the
Oudtshoorn
Municipality, Sanlam, Cape Nature, the SA National Biodiversity
Institute and Cape Media. He lost his position with
the SA National
Biodiversity Institute when he spent a month in custody after his
arrest on the charges in the current matter.
His contract with the
Grove Group was not extended in February 2013 because of the time he
was spending out of office due to the
trial in the current matter.
During the period 2006 to 2009, when he moved to Cape Town, accused 2
served on the Oudtshoorn Tourism
Board and in the Oudtshoorn Business
Chamber. In 2009 he established his own township tourism business in
Oudsthoorn, which he
conducts through a close corporation. The
bookings are attracted via the internet and he employs a local guide
to conduct the tours.
The reports prepared by Nicro in respect of accused 2 suggest that
were he to be incarcerated and as a result lose his income
it would
be detrimental to his sense of mastery and success at work, which in
turn could result in him developing attitudes that
could induce a
sense of hopelessness placing him at risk of future offending.
Whether or not this indeed a material risk, it
is evident that
accused 2 is not the sort of person who community interest would
require to be removed from the community. It
is unsurprising
therefore that a correctional official has reported him to be a
suitable candidate for correctional supervision.
Accused 2 was the only one of the three accused to give evidence in
mitigation of sentence. He confirmed his personal particulars
and
testified as to his fears about the negative effects incarceration
might have on his life. He said that he had found conditions
in
Pollsmoor prison during his month long incarceration there in 2011
much worse than his experience of prison life after his
conviction
for culpable homicide after the motor vehicle collision referred to
earlier. He said it was effectively necessary
to join a gang for
self protection. He said that drugs, the smuggling of weapons,
racketeering and corruption were rife in the
prison. The accused’s
depressing report of prison conditions is supported by the
literature referred to in the jointly
written report by Ibtisaam
Peck and Arina Smit of Nicro that was put in during Ms Peck’s
evidence; in particular the 2007
paper
1
by Lukas Muntingh of the Civil Society Prison Reform Initiative,
with its references to the wide range of systemic challenges
that
characterise the South African Correctional Services reported in the
Jali Commission report. As stated in the paper ‘
What
happens inside prisons does not stay there; it goes home with
released prisoners and the staff who work there: “When
people
live and work in facilities that are unsafe, unhealthy,
unproductive, or inhumane, they carry the effects home with them”
(Gibbons and Katzenbach, 2006: 11).
2
Ultimately it affects the overall state of democracy: rights
violations, corruption, impunity and a host of ills associated with
prisons spill over into the domain of free citizens on an
ideological level
.’
Accused 3 is 33 years of age, having been born on 10 July 1979.
He is married with two children by his wife. He has another
daughter
who is 16 years of age who lives in Aberdeen in the Eastern Cape
with her mother. He owns the house in which he and
his family
reside. They have lived there for four years. He has been employed
by a firm of painters since October 2007. He is
required to work
over weekends and after hours when the need arises. He and his wife,
who is also employed at a printing company,
share financial
responsibility for the maintenance of their two children. The
accused also contributes towards the maintenance
of his daughter,
who lives in Aberdeen. He comes from a closely knit family
background. His parents are deceased. His sister
lives in the family
home at Oudtshoorn and his brother is undergoing tertiary education
in George. He is a first offender and,
although, like his
co-accused, he persists in denying complicity in the crimes for
which he has been convicted, he has indicated
his willingness to
submit to correctional supervision. A correctional official has
confirmed that accused 3 is a suitable candidate
for correctional
supervision.
Counsel for each of the accused argued that an appropriate sentence
in the current matter would be one of correctional supervision
in
terms of
s 276(1)(h)
of the
Criminal Procedure Act 51 of 1977
.
Correctional supervision is a sentencing option that was introduced
in terms of s 41(a) of the Correctional Services and
Supervision Matters Amendment Act 122 of 1991, at a time when the
Prisons Act 8 of 1959 (which the Amendment Act renamed as ‘the
Correctional Services Act’) was still in place. In
S v R
1993 (1) SA 476
(A),
1993 (1) SACR 209
, Kriegler AJA remarked on the
character of the amending legislation, and its introduction of
correctional supervision as a sentencing
option as follows (at
487F-H SALR):
Die ingrypende aard van die Wysigingswet is opvallend by
die blote aanskoue van die aanhef - dit beslaan meer as 'n bladsy.
Die
belangrikste aspek daarvan is die klemverskuiwing vanaf
gevangenisstraf na hervorming. Die benaming van Wet 8 van 1959 ('die
Hoofwet')
word (by art 33(1) van die Wysigingswet) verander van die
Wet op Gevangenisse na die Wet op Korrektiewe Dienste, met
ooreenstemmende
naamsveranderings in die woordomskrywingsartikel (art
1); die missie van die herbenaamde Departement van Korrektiewe
Dienste in
art 2(1) van die Hoofwet word herbewoord (by art 2) om die
korrektiewe strewe te benadruk; die vrylatingsadviesraad en
vrylatingsrade
word (by arts 7 en 5 onderskeidelik) herbenaam en die
korrektiewe gerigtheid van hul werksaamhede word uitgelig; en, wat
hier van
besondere belang is, 'n splinternuwe hoofstuk VIIIA word (by
art 28) ingevoeg waarin uitvoerig voorsiening gemaak word vir
korrektiewe
toesig, weereens met toepaslik ooreenstemmende wysigings
(by art 1) van die woordomskrywings in art 1 van die Hoofwet.
(Act 8 of 1959 has since been repealed and replaced by the
Correctional Services Act 111 of 1998
.)
In terms of the currently applicable statute ‘correctional
supervision’ is defined as ‘a form of community
corrections contemplated in Chapter VI’ (see s 1 of the
Act). ‘Community corrections’ are in turn defined
as
meaning ‘all non-custodial measures and forms of supervision
applicable to persons who are subject to such measures
and
supervision in the community and who are under the control of the
Department’. The objectives of community corrections
are set
out in s 50(1)(a) of the Act as follows:
The objectives of community corrections are-
(i) to afford sentenced offenders an opportunity to
serve their sentences in a non-custodial manner;
(ii) to enable persons subject to community corrections
to lead a socially responsible and crime-free life during the period
of
their sentence and in future;
(iii) to enable persons subject to community corrections
to be rehabilitated in a manner that best keeps them as an integral
part
of society; and
(iv) to enable persons subject to community corrections
to be fully integrated into society when they have completed their
sentences.
Section 52(1)
of the
Correctional Services Act, 1998
, provides:
When community corrections are ordered, a court, the
Correctional Supervision and Parole Board, the National Commissioner
or other
body which has the statutory authority to do so, may,
subject to the limitations contemplated in subsection (2) and the
qualifications
of this Chapter, stipulate that the person concerned-
(a) is placed under house detention;
(b) does community service in order to facilitate
restoration of the relationship between the sentenced offenders and
the community;
(c) seeks employment;
(d) where possible takes up and remains in employment;
(e) pays compensation or damages to victims;
(f) takes part in treatment, development and support
programmes;
(g) participates in mediation between victim and
offender or in family group conferencing;
(h) contributes financially towards the cost of the
community corrections to which he or she has been subjected;
(i) is restricted to one or more magisterial districts;
(j) lives at a fixed address;
(k) refrains from using alcohol or illegal drugs;
(l) refrains from committing a criminal offence;
(m) refrains from visiting a particular place;
(n) refrains from making contact with a particular
person or persons;
(o) refrains from threatening a particular person or
persons by word or action;
(p) is subject to monitoring;
(q) in the case of a child, is subject to the additional
conditions as contained in
section 69
; or
(r) is subject to such other conditions as may be
appropriate in the circumstances
.
If a person sentenced to correctional supervision fails to abide by
the terms and conditions of the sentence he may be subjected
to a
range of corrective measures including being arrested and brought
before court for resentencing
(s 70
of Act 111 of 1998 and
s 276
(4) of the
Criminal Procedure Act). The
sentence is of a
flexible character in order to promote the best achievement of its
objectives. Thus, if in the opinion of the
National Commissioner a
change of circumstances calls for a change in the conditions, the
Commissioner may apply to the court
which imposed the conditions to
amend them
(s 71).
The flexibility inherent in the power of the
court imposing correctional supervision to tailor the applicable
conditions was
a feature emphasised by Kriegler AJA in
S v R
supra, at 488 (SALR); see also
S v M
supra, at para. 64.
In
S v R
it was held (at 488G) that in devising the sentence
option of correctional supervision the legislature had signalled its
intention
to distinguish between two types of offender, namely those
who had to be isolated from the community by incarceration and those
who were deserving of punishment but not required to be removed from
the community. Kriegler AJA added that the introduction
of the
sentence option reflected that punishment, while retaining its
punitive character, need not necessarily, or even primarily,
be
achieved by locking the offender up in a prison. The sentence is
designedly an alternative to imprisonment, and its introduction
represented a material shift in emphasis in the achievement of the
societal objectives of sentencing. In
S v D
1995 (1) SACR 259
(A) at 266c – d, Nicholas AJA observed ‘
In its nature
a sentence of correctional supervision is not denunciatory. It does
not follow, however, that such a sentence is
necessarily
inappropriate because the case is one which excites the moral
indignation of the community. The question to be answered
is a wider
one: whether the particular offender should, having regard to his
personal circumstances, the nature of his crime
and the interests of
society, be removed from the community.
’ In
S v
Williams and Others
1995 (2) SACR 251
(CC), at para 67-8,
Langa J remarked:
[67] The introduction of correctional supervision with
its prime focus on rehabilitation, through s 276 of the Act, was a
milestone
in the process of 'humanising' the criminal justice system.
It brought along with it the possibility of several imaginative
sentencing
measures, including, but not limited to, house arrest,
monitoring, community service and placement in employment. This
assisted
in the shift of emphasis from retribution to rehabilitation.
This development was recognised and hailed by Kriegler AJA in
S
v R
as being the introduction of a new phase
in our criminal justice system allowing for the imposition of
finely-tuned sentences without
resorting to imprisonment with all its
known disadvantages for both the prisoner and the broader community.
[68] The development of this process must not be seen as
a weakness, as the justice system having 'gone soft'. What it entails
is
the application of appropriate and effective sentences. An
enlightened society will punish offenders, but will do so without
sacrificing
decency and human dignity.
In
S v M
supra, at para. 63, Sachs J, writing for
the majority in the Constitutional Court, reiterated that
correctional supervision
should not be categorised as a lenient
alternative to direct imprisonment. The learned judge quoted, with
approval, the following
extract from the unreported judgment of
Conradie J in
The State v Margaret Gladys Harding
CPD
SS61/1992, 23 September 1992) in support of the proposition:
‘
(i)n some ways it is harder
than imprisonment. A cynic once said that the easiest life on earth
is being a soldier or a nun: you
only have to obey orders. Prison is
like that. A model prisoner is the one who best obeys orders. These
are not ideal circumstances,
generally, for the regrowth of
character. Correctional supervision gives an offender greater scope
for regrowth of character. It
involves a good deal of psychological
strain, it takes a great deal of restraint and determination on the
part of a probationer.
It can be very stressful. A probationer does
not have his freedom - far from it - but he is not cut off from the
community altogether.
His support systems are not destroyed and in
this way his rehabilitation prospects are enhanced. Moreover, there
is the benefit
that society does not lose the skills of someone who
is able to maintain himself and his dependants, as well as the family
unit.
Community service, which goes hand in hand with correctional
supervision, is beneficial.’
3
Ms Galloway for the State argued that correctional supervision was
an inappropriate sentence because of the seriousness of the
offences
of which the accused have been convicted. In
S v M
supra,
Sachs J noted (at n 69 to para. 63) that ‘
coupled
with the correct conditions, correctional supervision could, in
appropriate cases, even be suitable for serious offenders
’.
4
The learned judge cited
S v Ingram
1995 (1) SACR 1
(A), at
9
e-f
, in support of his observation.
Ingram
was a
murder case. In
Ingram
loc cit, Smalberger JA said the
following:
As was pointed out in
S v R
(supra at 488G), the
Legislature, by the introduction of this option, has sought to
distinguish between two types of offenders:
those who ought to be
removed from society and imprisoned and those who, although deserving
of punishment should not be so removed.
Correctional supervision can
be coupled with appropriate conditions to make it a suitably severe
sentence even for serious offenders.
It therefore allows for the
imposition of an adequate sentence without resorting to imprisonment
with all its attendant negative
consequences for both the prisoner
and society. As correctional supervision under s 276(1)(h) can, in
terms of s 276A(1)(b), only
be imposed for a period not exceeding
three years, it is not a sentence that readily lends itself to the
very serious category
of crimes (which would normally call for higher
sentences) and should therefore not be too lightly imposed in such
cases.
It seems to me, with respect, that Sachs J’s
aforementioned observation laid the emphasis on the first part of the
quoted passage from
Ingram
. Certainly, I do not read the
passage from
Ingram
to suggest that correctional supervision
is not an option in a case in which incarceration for more than three
years would otherwise
be the alternative. As mentioned, there is
authority to the effect that conditions of correctional supervision
can be framed so
as to make it in some senses a harsher regime than
imprisonment. That acknowledgment shows that it is misdirected to
indiscriminately
equate three years of correctional supervision with
three years’ direct imprisonment. The remarks made by
Smalberger JA
were uttered before the introduction of the
minimum sentence regime in terms of Act 105 of 1997. That legislation
describes a range
of offences for which the legislature has
determined that lengthy periods of direct imprisonment should be the
norm, save where
there are substantial and compelling circumstances
to justify a departure from the prescribed minimum; and even where
such circumstances
are found to exist, the prescribed minimum still
serves as a touchstone from which to measure the degree of departure
that is justified.
I am of the view that in the context of the
currently applicable legislative framework on sentence, seen
holistically, it would
be in instances to which the minimum
sentencing provisions apply that resort to s 276(1)(h) or (i)
would be difficult, but
nevertheless not impossible,
5
to justify. In my view the judgment of the full court of the Eastern
Cape in
S v Mngoma
2009 (1) SACR 435
(E), which is cited by
the commentators in Du Toit et al
Commentary on the
Criminal
Procedure Act
in
support of the proposition that there are,
however, ‘
circumstances where correctional supervision as a
sentencing option would be improper and disproportionate to the
gravity of the
offence
’, falls to be understood in this
context. In that case a sentence of five years’ imprisonment
had been imposed in terms
of
s 276(1)(i)
of the
Criminal
Procedure Act (i.e
. imprisonment from which the convicted person may
be placed under correctional supervision in the discretion of the
Commissioner
or a parole board) in respect of an offence which
carried a minimum sentence penalty of 15 years’ imprisonment in
terms of
Act 105 of 1997. The sentence was understandably, with
respect, held by the full court to be disproportionate to the gravity
of
the offence.
The offences of which the accused have been
convicted are not subject to the minimum sentencing regime. I am
satisfied that it
is possible to craft a set of community
corrections, which, taken together with a sentence of imprisonment,
which shall be wholly
suspended on suitable conditions, will
constitute an appropriately severe sentence to match the seriousness
of the offences of
which the accused have been convicted. In order
to achieve this result it has been necessary to describe the
conditions of community
corrections in far more detail than
suggested by the correctional official and apparently endorsed by
the accuseds’ counsel.
I consider that the sentencing court
should in any event have the most determinative say in the framing
of conditions. Any other
approach courts criticism as an abdication
by the court to the Department of Correctional Services of its
sentencing powers;
cf.
S v
Govender
1995
(1) SACR 492
(N). As Sachs J stated in
S
v M
supra, at para. 54’
‘
The sentencing courts must
themselves identify the specifics of the correctional supervision
sentence, but not necessarily the
manner in which it is to be
implemented. In Govender it was held that while the court should
clearly indicate the duration and
extent of the specific components
of the sentence, it was not desirable for it to specify the manner
in which the sentence is
to be carried out. It was held that the
court must retain effective control over the sentence without
compromising flexibility.
This appears to be a sound principle.
’
6
I have determined on this course after the most anxious
consideration. I was in particular concerned about the attitude of
all of the accused in refusing to admit to their complicity in the
offences. I have decided on reflection that this does not materially
detract from their amenability to reform and rehabilitation, if
regard is had to the positive aspects of their characters as
evidenced by their apparently crime-free and socially constructive
lives thus far. Denial and cover-up appear in any event to
be an
integral characteristic of the culture of vigilantism. This is
evidenced by the refusal or inability of affected communities
to
treat it as an evil rather than a good, and the consequent lack of
cooperation with which the police and the courts have to
deal in
cases in which it is a feature.
As already recorded, the period and conditions of correctional
supervision are designed to be severe to reflect the gravity of
the
crimes. It is for this reason that there is deliberately no
provision permitting the Commissioner of Correctional Services
to
ameliorate or remit any of the defined community corrections
attached to the sentence. I have also sought to provide a measure
of
restorative justice by way of determining that each of the accused
should pay a measure of monetary compensation to certain
of the
complainants or their families. The amounts determined are nominal
and the conditions are not intended in any way to detract
from the
right of any affected complainant or other person to institute
proceedings against any of the accused for additional
compensation
in damages in any amount which they are able to prove; the
compensatory awards are intended to be a token or
solatium,
and not a financial measure of loss. I have omitted Zolani
Ntliziyombi from the complainants to be compensated because of his
non-cooperative attitude in the prosecution of the accused. The
sentence of imprisonment to be imposed on accused 2 differs from
those to be imposed on accused 1 and 3 so as to reflect that he was
not convicted of house breaking on count five.
In determining upon a sentence of correctional supervision I have
decided to treat the offences of which the accused have been
convicted globularly, as one, for the purposes of sentence. In
adopting this approach I have not overlooked the line of authority
which calls it into question; see e.g.
Director of Public
Prosecutions, Transvaal v Phillips
2013 (1) SACR 107
(SCA), at
para 27, and the other cases cited there. While recognising the
undesirability of globular sentencing as a general
rule, there are
circumstances when it is indicated. And the authorities to which I
have just referred themselves recognise as
much. It is appropriate
in this case because the offences were committed as parts of the
carrying out of a single course of conduct
and because it would be
impracticable to formulate and attach the conditions of correctional
supervision to the offences in a
componential manner.
Taking all counts of which they were convicted as one for the
purposes of sentence,
ACCUSED 1 AND 3
are each sentenced to
SEVEN (7) YEARS’ IMPRISONMENT
, which shall be wholly
SUSPENDED FOR A PERIOD OF FIVE (5) YEARS
on the following
conditions:
1. That the accused are not convicted of any offence committed during
the period of suspension involving assault, kidnapping or
housebreaking for which a sentence of imprisonment without the option
of a fine is imposed.
2. That the accused undergo a period of three years of correctional
supervision in terms of
s 276(1)(h)
of the
Criminal Procedure
Act 51 of 1977
comprising of the following community corrections:
(a) House arrest for the full duration of the period of correctional
supervision at their current fixed abodes or such other place
as
might be determined by the Commissioner for Correctional Services on
written application by the accused and on terms to be determined
by
the Commissioner of Correctional Services, but which shall provide
that the accused shall be confined to their places of abode
for no
less than eight hours on any day in which they are engaged in
employment and for no less than 12 hours on any day in which
they are
not so engaged.
(b) 625 hours of community service to be undertaken at the rate of
not less than 16 hours of service per calendar month during
the
period of correctional supervision. Subject to the aforegoing, the
nature of the community service and the place and times
during which
it shall be undertaken shall be determined by the Commissioner of
Correctional Services.
(c) The retention of his employment, or failing that, his
conscientiously, and to the satisfaction of the Commissioner of
Correctional
Services, seeking employment during the period of
correctional supervision. In the event that the accused is for any
time during
the period of correctional supervision unemployed he
shall submit at the end of each month to a correctional official
designated
by the Commissioner of Correctional Services a report
detailing the steps he has taken to seek employment vouched by such
supporting
documentation as the Commissioner or the designated
official may require. The Commissioner’s attention is directed
to the
provisions of
s 61(2)
of the
Correctional Services Act
111 of 1998
, which require the Commissioner to assist in the attempt
to find employment.
(d) The payment of compensation in the amounts fixed below to the
following persons:
Lwando Sydney Somdaka in the amount of R1000
Violet Thembisa Ndabambi (the mother of the late Andile Mzamo
Ndabambi) in the sum of R1000.
Xoliswa Sani in the sum of R500.
Payment of the aforementioned compensation shall occur in such
instalments and at such times as may be directed by the Commissioner
of Correctional Services with regard to the accused’s income
and reasonable expenditure requirements, proof of which may
be
required by the Commissioner. Written proof of payment of the
compensation must be vouched by the accused to the Commissioner
in
accordance with his directions.
(e) Participation in such treatment, development and support
programmes as may be determined by the Commissioner of Correctional
Services. The accused are directed to submit to a complete assessment
by a social worker of the Department of Correctional Services
to
facilitate the determination of the programmes in which they should
participate.
(f) Payment of such amount towards the costs of the community
corrections to which he is subjected in terms hereof in instalments
as may be determined by the Commissioner of Correctional Services
after regard to the accused’s income and reasonable expenditure
requirements, proof of which may be required by the Commissioner for
this purpose.
(g) Restriction to the magisterial districts of the Cape, Wynberg,
Simon’s Town, Bellville, Goodwood, Somerset West, Strand
and
Kuils River and such other districts as the Commissioner of
Correctional Services may on written application by the accused
determine for the purposes of facilitating the accused’s
engagement in employment, or for compassionate reasons.
(h) Refrains for the whole of the period of correctional supervision
from the use of alcohol or illegal drugs.
(i) Prohibition during the whole of the period of correctional
supervision from attendance at any place such as a tavern, pub or
shebeen where alcoholic beverages are served.
(j) Monitoring by the Department of Correctional Services, including
electronic tagging if so determined by the Commissioner, in
order to
ensure compliance with the conditions of correctional supervision.
(k) The obligation to inform the Commissioner of Correctional
Services in advance of any change of residential and/or work address.
3. That the accused shall report to the Correctional Officer at 17
Corporation Street, Cape Town by no later than 14h00 on Wednesday,
17 April 2013, for the purpose of commencing his correctional
supervision..
[33] Taking all counts of which he was convicted as one for the
purposes of sentence,
ACCUSED 2
is sentenced to six (6) years’
imprisonment, which shall be wholly
SUSPENDED FOR A PERIOD OF FIVE
(5) YEARS
on the same conditions as those set out in paragraphs
1, 2 and 3 of the conditions of suspension attached to the sentences
of imprisonment
imposed on accused 1 and 3, save that housebreaking
shall in his case be excluded from the offences listed in paragraph 1
of the
conditions.
A.G. BINNS-WARD
Judge of the High Court
1
Although
the details of the paper were omitted from the table of references
at the end of the joint report of
Ibtisaam Peck and Arina
Smit, I believe that I have managed independently to identify it as
‘
Prisons in South Africa’s Constitutional Democracy
’
presented as part of the Criminal Justice Programme of the Centre
for the Study of Violence and Reconciliation in October
2007.
2
Gibbons,
J and Katzenbach, N. (2006). “
Confronting
confinement: A Report of the Commission on Safety and Abuse in
America's Prisons
”
.
3
Also
quoted with approval in
S v Schutte
1995 (1) SACR 344
(C) at 349d – g.
4
Cf.
also
S v L
2012
(2) SACR 399
(WCC), a murder case in which the convicted accused was
a teenaged boy, where Cloete AJ (Yekiso J concurring) noted, at
para. 26,
‘
Our courts have
stressed on numerous occasions that judicial officers should not
hesitate, in appropriate cases, to make use of
correctional
supervision. It has already been imposed for very serious crimes,
including murder:
S v Booysen
1993 (1) SACR 698
(A);
S
v Potgieter
1994 (1) SACR 61
(A);
S v Kleynhans
1994 (1) SACR 195
(O); and
S
v Ingram
1995 (1) SACR 1
(A).
In all of these cases the perpetrators were adults
’
.
5
Cf.
S v Romer
2011
(2) SACR 153
(SCA).
6
Footnotes
omitted.