Quote of the week

The judgments are replete with the findings of dishonesty and mala fides against Major General Ntlemeza. These were judicial pronouncements. They therefore constitute direct evidence that Major General Ntlemeza lacks the requisite honesty, integrity and conscientiousness to occupy the position of any public office, not to mention an office as more important as that of the National Head of the DPCI, where independence, honesty and integrity are paramount to qualities. Currently no appeal lies against the findings of dishonesty and impropriety made by the Court in the judgments. Accordingly, such serious findings of fact in relation to Major General Ntlemeza, which go directly to Major General Ntlemeza’s trustworthiness, his honesty and integrity, are definitive. Until such findings are appealed against successfully they shall remain as a lapidary against Lieutenant General Ntlemeza.

Mabuse J
Helen Suzman Foundation and Another v Minister of Police and Others
14 March 2007

Viva minimum sentences!

The newspapers report this morning that the law on minimum sentencing will be extended and also amended to further circumscribe the discretion of judges in handing down sentences in criminal cases.

Some lawyers, academics and, of course, judges object to this legislation because they argue it interferes with the ability of judges to make wise sentencing decisions, based on years of experience and in the light of the specific facts before it. Judges, so the argument goes, must dispense justice to individuals and can best do so if they can rely on their years of experience to do so.

Some also argue that the legislation has the potential to affect the independence of the judiciary because it represents interference by the legislature into what is essentially a judicial function.

I am on the other side of this argument. Often, when judges say they rely on their accumulated wisdom and insight, I fear that they are really relying on their ingrained collective prejudices built up over many years as part of the male dominated legal elite.

For example, many judges (and many more magistrates) have demonstrated a particular lack of insight into the fears and concerns of women in cases dealing with sexual offences and other forms of violence against women. The kind of utterances made by the Judge in the Jacob Zuma rape trial did not seem to express a deep understanding of the world of poor black women.

Minimum sentencing is a blunt instrument to begin to address this problem. It should, ideally, go hand in hand with judicial training to shock judges out of the self-satisfying complacency under which some of them languish. But some judges – usually those most in need of training – are not very enthusiastic about having their assumptions and prejudices challenged.

What minimum sentencing laws should not be used for, is as window dressing to try and keep the fearful public happy. Often such laws are deployed by politicians who do not know how else to signal to voters that they take crime seriously. That can only lead to unnecessary high prison populations and injustice.

Of course there is a broader need for sentencing guidelines for magistrates and judges to try and get some more consistency into the system. But that is such a hot potato that even Johnny de Lange, the Minister – I mean Deputy Minister – of Justice has not yet tackled it.

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