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


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.