As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.BACK TO TOP