Prof Letlhokwa George Mpedi and Dr Pelmos Mashabela recently penned an opinion article first published in The Daily Maverick, 08 July 2021.
Non-custodial sentencing minimises unnecessary overcrowding in prisons and lowers the costs of incarceration. It gives the offender an opportunity to continue to work, study and maintain a family life, and aids meaningful reintegration.
The American psychiatrist, Thomas Szasz, in his book The Second Sin (1973), wrote: “If [s]he who breaks the law is not punished, [s]he who obeys it is cheated. This, and this alone, is why lawbreakers ought to be punished: to authenticate as good and to encourage as useful, law-abiding behaviour.”
It is or should be any rational law-abiding person’s view that crimes committed without justification should not go unpunished. This is neither here nor there. The elephant in the room is the punishment or sentence to be meted out against those who have been found guilty by a court of law for having committed a crime.
This subject has been and continues to be acknowledged by our courts as the trickiest section of a criminal trial that a presiding judicial officer must contend with.
The Eastern Cape Regional Court recently acknowledged this challenge before sentencing Ms Sibongile Mani to five years in prison for theft of National Student Financial Aid Scheme (NSFAS) funds. There are well established general principles that consist of the so-called “triad of Zinn” (i.e. the crime, the offender, and the interests of society). The general principles are undergirded by what is commonly known as the “four purposes of punishment” or “philosophies of punishment” as other experts would state (i.e. deterrent, preventive, reformative and retributive).
Balancing the general principles on the one hand and the purposes of punishment, on the other hand, is easier said than done. The outcry and debates that followed the sentencing of Mani illustrate this point. At the heart of the uproar is the question of whether the court should have handed Mani a suspended or non-custodial sentence instead of direct incarceration. This is an important question, especially coming from the public whose interest the court seeks to protect, among other considerations.
The outrage concerning Mani’s sentence could be interpreted as an indication of the public interest in the sentences meted out by the courts. This is good. In addition, it could be contended that society is alive to the reality that some crimes and some offenders do not deserve direct incarceration.
This situation seems to resonate with what Oscar Wilde lamented in his 1891 essay The Soul of Man Under Socialism when he argued: “One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted; and a community is infinitely more brutalised by the habitual employment of punishment than it is by the occasional occurrence of crime.”
Imprisonment is etched in the minds of some members of society as a panacea for, inter alia, crime prevention or a deterrent to crime. Anything short of putting those convicted of crime behind bars is a perversion of justice.
This line of thinking is problematic as it fails to appreciate the truth that what may be perceived as an appropriate sentence for a particular crime evolves with time. Accordingly, a criminal justice system cannot be trapped in the past when it comes to the punishment it imposes.
Punishment by imprisonment was at some point in the history of many countries of the world not the sentence of choice. The most common forms of punishment were physical, and they included whipping and hanging. Imprisonment was introduced as an attempt to “reform” the offenders.
Another example is that of punishment by death. This sentence has been declared unconstitutional in many countries, including South Africa. Indeed, society’s views on what is or should be considered a suitable punishment for crimes can and must develop with the ever-changing times.
The calling out of the Eastern Cape Regional Court for sentencing Mani for a period of direct imprisonment instead of a suspended or non-custodial sentence is indeed in harmony with international standards such as the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) (1990) and Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms in Africa (2003).
These instruments advocate for the use of non-custodial measures such as community service, house arrest and suspended sentences as alternative forms of punishment to imprisonment.
Furthermore, these measures are to be imposed after due consideration of the nature and seriousness of the offence, the personality and background of the offender, protection of society and avoidance of unwarranted use of imprisonment.
If applied appropriately, non-custodial measures can be advantageous in the sense that they minimise unnecessary overcrowding in prisons, and lower the costs of incarceration. In addition, they provide the offender with an opportunity to continue to work, study and maintain a family life. This is important for meaningful reintegration at the end of a sentence.
If there is anything good that has come out of Mani’s sentence, it is that it shone the spotlight on the direct imprisonment and non-custodial sentence dichotomy in South Africa. That said, public debates on the issue are simply not enough.
The acceptability and value of non-custodial sentences in fulfilling the four purposes of punishment can only be realised if the monitoring and supervisory capability of the criminal justice system are equal to the task. This can be augmented by appropriate and cost-effective technologies.
When all is said and done, we should never forget the poignant words of the French author, Donatien Alphonse François, Marquis de Sade that: “Any punishment that does not correct, that can merely rouse rebellion in whoever has to endure it, is a piece of gratuitous infamy which makes those who impose it more guilty in the eyes of humanity, good sense and reason, nay a hundred times more guilty than the victim on whom the punishment is inflicted.”
Professor Letlhokwa George Mpedi is the Deputy Vice-Chancellor: Academic and former Executive Dean: Faculty of Law, University of Johannesburg.
Dr Pelmos Mashabela is a Researcher in the Office of the Minister of Justice and Correctional Services.
*The views expressed in the article is that of the author/s and does not necessarily reflect that of the University of Johannesburg