Let’s debate before you incarcerate

by Jessie

When anyone thinks about South African’s crime rate, or Sandton’s higher-than-their-mansion-high walls, we get a little tense. As South Africans, we know that crime is rife. We arm ourselves with pepper spray accordingly.

And so when we hear that a baddy[1] has been arrested, we commend the police. We thank the legal system. We look at are shining Constitution. We sleep well at night.

Robyn Emslie’s article on how incarceration[2] is not an effective tool to fight against crime[3] made sleeping at night a bit more difficult. South Africa has the largest inmate population in Africa (so much for shaking in our boots when we think of Nigeria). 40% of these are unsentenced awaiting their trial’s outcome.

But surely the best place for baddies is jail?

Correctional Services Minister Sbu Ndebele says differently. He says that the attitude of the judiciary[4]– that incarceration is the best crime deterrent- is wrong. He says that the judiciary needs to change its approach when dealing with those accused of crimes.

He doesn’t mention the legislature[5] though and how there is legislation that binds judicial officers to certain decisions.

Take, for instance, the minimum-sentencing regime[6] which has a minimum length of detention for certain crimes. Or look at the ‘stringent bail provisions’[7]. There is uncertainty in the sources of judicial power to grant bail: whether the power is exclusively from chapter 9 of the Criminal Procedure Act[8] or whether there is ‘common law’ power with which a judge can act[9]. As Lansdown and Campbell[10] put it “bail is the only remaining machinery for the protection of the liberty of the subject against unnecessary or avoidable pre-trial detention”.

Because of these types of legislation judges are often restricted to incarcerate the individual- as either remand detainees[11] or to sentence individuals to lengthy sentences that do not offer rehabilitation and community correction options.

We have crime. We have an ineffective incarceration system. And we have a guy who knows this. Now we need to convince Ndebele to shake up the legislation so that it can evaluate. Substantiate. And then, and only then, incarcerate.

[1] For this childhood word is definitely the best way to describe a criminal.

[2] Detaining someone in prison, usually for a crime committed.

[3] Robyn Emslie, Business Day, ‘Not just judiciary behind high jail population’, 14 August 2012.

[4] The courts.

[5] The laws that the presiding officers (magistrates, judges etc) of a court have to follow.

[6] Criminal Law Amendment Act 105 of 1997 viewed at http://www.justice.gov.za/legislation/acts/1997-105.pdf on 16 August.

[7] Supra note 3.

[8] Act 51 of 1977.

[9] In S v Hlongwane 1989 (4) SA 79 (T) the court thoroughly examined the question, identifying a number

of dissonant decisions,  and at 95D to 97E identified ten basic propositions, one of which (no 3) was that

from lawful arrest to sentence chapter 9 alone governs.

[10] Lansdown and Campbell: South African Criminal Law and Procedure, Vol V, (Juta & Co) (1982) at 311.

[11] Incarceration until a trial reaches a conclusion.