Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.
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