The oath: ritual and rationality

by | Jul 21, 2020 | SACJ, SACJ V32 I3 2019

The oath: ritual and rationality

Author PJ Schwikkard

ISSN: 1996-2118
Affiliations: BA (Wits) LLB LLM (Natal) LLD (Stell), Professor of Law, University of Cape Town.
Source: South African Journal of Criminal Justice, Volume 32 Issue 3, p. 357 – 376

Abstract

The administration of an oath, affirmation or admonishment is generally regarded as an indispensable marker of witness reliability in common law jurisdictions. As a result of colonisation, the same approach is entrenched in the South African legal system. This article examines the rule in its postcolonial context, its application, its rationale and its utility in furthering the truth-seeking function of the courts. It concludes with recommendations for law reform.

Sentencing in South Africa: Dominated by minimum sentences

by | Jul 14, 2020 | SACJ, SACJ V33 I1 2020

Sentencing in South Africa: Dominated by minimum sentences

Author SS Terblanche

ISSN: 1996-2118
Affiliations: LLB LLD (Unisa), Professor of Law, University of South Africa.
Source: South African Journal of Criminal Justice, Volume 33 Issue 1, p. 4 – 22

Abstract

Botswana’s sentencing regime has seen few changes since independence. Fifty years hence, some areas of sentencing appear to be out of step with international human rights standards. In particular, Botswana retains the death penalty and judicial corporal punishment, both of which have been abolished by many states world-wide, including several southern African countries. Nevertheless, Botswana remains firmly in favour of these penalties. Botswana has increasingly been using mandatory minimum sentences as penalties for certain offences. Some legal commentators and judges view mandatory sentencing as an unjustifiable usurping of judicial discretion. In response to the perceived loss of discretion, judicial officers have sometimes circumvented mandatory minima in sentencing. From the perspective of legislators however, mandatory sentences are seen as a crimecontrol tool and an effective method to achieve uniformity in sentencing. This article considers the continued utility of the death penalty and judicial corporal punishment and mandatory sentencing is discussed and possible alternatives to these sentences are proposed. The possible promulgation of a Sentencing Commission for Botswana is also considered. The article presents an assessment of these issues in sentencing law and practice and makes proposals for law reform.

Exploring sentencing purposes, principles and practices in Namibia

by | Jul 14, 2020 | SACJ, SACJ V33 I1 2020

Exploring sentencing purposes, principles and practices in Namibia

Author Justice Christie Liebenberg and Ndjodi Ndeunyema

ISSN: 1996-2118
Affiliations: LLB (Stellenbosch). Judge of the High Court of Namibia. The authors are grateful to Lotta Ambunda-Nashilundo and Thomas Kasita for their research assistance on this article; MSc in Criminology and Criminal Justice (Oxford). DPhil Law Candidate, University of Oxford.
Source: South African Journal of Criminal Justice, Volume 33 Issue 1, p. 23 – 44

Abstract

This article critiques the traditional purposes of sentencing found in Namibian law, as developed through the courts: retribution, deterrence, incapacitation and rehabilitation. The article proposes that more developed sentencing purposes be legislatively prescribed. Sentencing purposes are to be distinguished from the three principles of sentencing whereby courts are required to consider the crime, the offender and the interests of society. This is the so-called triad of Zinn. The article offers reform proposals to overcome its finding that the triad of Zinn is too basic, legally vague and insufficiently rigorous, as well as to ensure that sentencing principles are more responsive to victims of crime. The article also critiques the Supreme Court’s decisions on the unconstitutionality of life sentences and mandatory minimum sentences and assesses the impact of these decisions on sentencing practices in Namibia. The article concludes by evaluating potential legislative and policy reforms to address the issue of inconsistent approaches to sentencing in Namibia.

Sentencing in Botswana: Challenges and prospects

by | Jul 13, 2020 | SACJ, SACJ V33 I1 2020

Sentencing in Botswana: Challenges and prospects

Author E Macharia -Mokobi

ISSN: 1996-2118
Affiliations: LLD (UP), Senior Lecturer, Department of Law, University of Botswana.
Source: South African Journal of Criminal Justice, Volume 33 Issue 1, p. 45 – 65

Abstract

Botswana’s sentencing regime has seen few changes since independence. Fifty years hence, some areas of sentencing appear to be out of step with international human rights standards. In particular, Botswana retains the death penalty and judicial corporal punishment, both of which have been abolished by many states world-wide, including several southern African countries. Nevertheless, Botswana remains firmly in favour of these penalties. Botswana has increasingly been using mandatory minimum sentences as penalties for certain offences. Some legal commentators and judges view mandatory sentencing as an unjustifiable usurping of judicial discretion. In response to the perceived loss of discretion, judicial officers have sometimes circumvented mandatory minima in sentencing. From the perspective of legislators however, mandatory sentences are seen as a crimecontrol tool and an effective method to achieve uniformity in sentencing. This article considers the continued utility of the death penalty and judicial corporal punishment and mandatory sentencing is discussed and possible alternatives to these sentences are proposed. The possible promulgation of a Sentencing Commission for Botswana is also considered. The article presents an assessment of these issues in sentencing law and practice and makes proposals for law reform.

Sentencing in Zambia

by | Jul 13, 2020 | SACJ, SACJ V33 I1 2020

Sentencing in Zambia

Author Kelly Kapianga

ISSN: 1996-2118
Affiliations: MSc in Criminology and Criminal Justice (University of Oxford). Legal practitioner admitted to practice in the Republic of Zambia; currently reading for a Master’s of Laws (Harvard University).
Source: South African Journal of Criminal Justice, Volume 33 Issue 1, p. 66 – 88

Abstract

Zambia faces numerous problems relating to sentencing, including unwarranted sentencing disparities and an unmanageable prison population attributable to, among other factors, a failure to make sufficient use of non-custodial sentences. One consequence of Zambia’s history as a former British protectorate is that its Constitution requires Zambia to borrow from English law and practice in matters that are not covered by Zambian law. The article highlights the shortcomings in Zambia’s sentencing system and recommends that Zambian sentencers adopt and adapt the English and Welsh sentencing guidelines to help address the problems currently faced by sentencers in this jurisdiction. Sentencing guidelines are fast becoming a staple feature of sentencing systems worldwide including several African jurisdictions. They are proving to be a useful device for not only restraining unwarranted sentencing disparities, but also incorporating non-custodial sentences into a sentencing system as one of several measures of ensuring the efficient use of penal resources. The English and Welsh sentencing guidelines have proved to be particularly influential in the development of guidelines across the world, including on the African continent.