fact that this method may be lauded for its novelty and certainly for its potential efficacy, this
all means very little if it does not pass constitutional muster and would not survive if
challenged in court.
This paper is intended to provide a novel, thorough and cohesive introductory account
of this issue, suggesting that periodic imprisonment is both an effective and constitutional
alternative punishment method when it comes to minor crimes and that its application should
be much more widespread than it currently is.
B PRISONS IN SOUTH AFRICA
The need for alternative sentencing methods to be used whenever necessary becomes clear
when one considers the dire state in which the current South African prison system finds
itself. If prisons are in such a bad state, and no longer fulfilling the purposes for which they
were introduced, it should be the aim of the judiciary during sentencing to send people there
only if absolutely necessary, especially when alternative methods do exist.
Originally, prisons were intended to serve a number of purposes: the punishment of
offenders, making society safer by removing dangerous individuals, deterring potential
offenders from committing crimes and rehabilitating and „correcting‟ offenders so that upon
release, they would lead productive, crime-free lives and contribute to society in a positive
way.4 However, the last one of these purposes has become increasingly overlooked and the
effectiveness of the first three has been brought into serious doubt in South Africa.5
In a country such as South Africa, literature and studies abound reiterating that the
thought of prison as a deterrent is quite impossible.6 With conviction rates as low as 6-18%
depending on the offence,7 potential offenders are certainly not going to be deterred from
committing a crime, if they know that they are unlikely to be caught. Even if they are caught,
they are unlikely to be prosecuted.8 Even if they are prosecuted there is the added problem
that life „inside‟ might actually be a better life for some than they would experience on the
'outside'. In South Africa, the average salary is around ZAR2500 per month9 and
4 M Sekhonyane, „Rehabilitation Starts with Alternatives to P rison‟ (2004) Crime Quarterly No 7
(1 February 2010).
5 See L Muntingh „Punishment and Deterrence: Don‟t Expect Prisons to Reduce Crime‟ (2008) Crime Quarterly
No 26 .co.za/index.php?link_id=3&slink_id=7280&link_type=12&slink_ type=12&tmpl_id=3>
(1 February 2010). He suggests that 200 years of histor y has shown that prisons do non e of the three terribly
effectively; R Sommer The End of Imprisonment (Oxford University Press New York 1976) 171 ; A Liebling
and S Maruna (eds) The Effects of Imprisonment (Willan Books Cullompton 2005) 66.
6 See B Hudson Understanding J ustice (2nd edn Open University Press London 2003) 24 for a detailed
discussion on why individual deterrence is not improved b y sentencing measures; SS Terblanche The Guide to
Sentencing in South Africa (Butterworths Durban 1999) 179; D Beyle veld A Bibliography on general deter rence
(Ashgate London 1980); Blumstein et al (eds) Deterrence and Incapa citation (National Academy of Sciences
Washington 1978); S v Makwanyane 1995 2 SACR 1 (CC) 182; S v Skenjana 1985 3 SA 51 (A) 54I-55A; S v
Mhlakaza 1997 1 SACR 51 5 (SCA) 519g; S v Martin 1996 2 SACR 378 (W) at 385d; S v Sibeko 1995 1 SACR
186 (W) 191C-E; S v Mogora 1990 2 SACR 9 (T) 13i-j.
7 T Legget „South Africa‟s Conviction Rates in Perspective‟ (2003) Crime Quarterly No 5. Since 2003
conviction rates have only worsened. In 2007/08, the rate was 12.6% for murder and belo w 10% for most other
crimes according to the SAPS annual report.
(1 February 2010).
9 R Burger and D Yu „Wage Trends in Post-Apartheid South Africa: Constructing an Earnings Series from
Household Survey Data‟
/LMFArt1Nov06.pdf> (February 2010).