Alternatives To Traditional Sentencing Methods- The Efficacy And Constitutionality Of Periodic Imprisonment In South Africa

Author:Henry Rossouw
Position:BBS in Management Studies with a Specialisation in Law from the University of Cape Town, South Africa
Pages:1-16
[2010] COLR
ALTERNATIVES TO TRADITIONAL SENTENCING METHODS- THE EFFICACY
AND CONSTITUTIONALITY OF PERIODIC IMPRISONMENT IN SOUTH
AFRICA
Henry Rossouw *
ABSTRACT
This paper discusses the efficacy and constitutionality of periodic imprisonment as an
alternative to traditional, purely custodial sentences in the South African context. It is
submitted that periodic imprisonment is both effective when it comes to attaining the general
goals of punishment and also that it promotes a number of Constitutional rights, such as the
right to dignity is section 10 and the right not to be treated or punished in a cruel, inhuman
or degrading way in terms of section 12(1)(e). In the light of this, it is argued that courts
should look at applying periodic imprisonment as a sentence wherever possible and suitable,
and certa inly more than is currently the case.
A INTRODUCTION
The South African prison system, like many throughout the world, is a failing or failed
institution depending on how positive an outlook one chooses to adopt. Instead of being
bastions of rehabilitation and correction, prisons are often overrun by gangs.1 Some are
overcrowded and unsafe to the point of being constitutionally questionable.2 Furthermore,
prisons in South Africa play an increasingly diminishing role in ensuring that a prisoner is
any more able to operate in the outside world or that they will make any meaningful positive
contribution to the society upon release. It is for these reasons that alternative punishments
need to be used whenever possible, especially those that keep the offender out of prison.
This paper serves as an introduction to one such method: periodic imprisonment. This
is the process by which an offender who has committed a minor offence serves their prison
sentence in short stints, usually at the weekend only, allowing them to maintain their social
ties as well as any employment they might have, during the week. 3 The discussion focuses
first and foremost on the effectiveness of periodic imprisonment in the light of the
aforementioned goals of correction and rehabilitation, when compared to the more traditional
forms of punishment. Leading on from this discussion is a consideration of the
constitutionality of this form of punishment. Here, the impact of periodic imprisonment on
the right to dignity in section 10 of the Constitution and the right to freedom from cruel,
inhuman and degrading punishment in section 12(1)(e) will be explored. Indeed, despite the
*BBS in Management Studies with a Specialisation in Law from the University of Cape Town, South Africa.
1 Identified by the Judicial Commission of Inquiry into Allegations of Corruption, Maladministration and
Violence in the Department of Correctional Services (DCS), appointed in 2001, as one of the biggest problems
in South African prisons today, and one which is characterised by gaps in legislation an d policy interventions.
See A Van der Berg „Summary and comment on the final report of the Judicial Commission of Inquiry into
Allegations of Corruption, Maladministration and Violence in the Department of Correctional Services: The Jali
Commission report‟ CSPRI Research Report 13 (2007).
2E Ellis Jail sentence will be death fraudster‟ IOL News
(1 February 2010 ).
3 „Minor offence‟ implies not subj ect to a mi nimum se ntence in terms of the Criminal Law (Amendment) Act
1997.
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[2010] COLR
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).
8 ibid.
9 R Burger and D Yu „Wage Trends in Post-Apartheid South Africa: Constructing an Earnings Series from
Household Survey Data‟
AD86/$File
/LMFArt1Nov06.pdf> (February 2010).
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