91:: "Punishment should fit the criminal as well as the crime, be fair to the accused and to society, and be blended with a measure of mercy." In line with the philosophy of restorative justice, the Bosielo had "little doubt" that the complainant would have been better pleased to receive compensation for his loss: An order of compensation, coupled with a suspended sentence, would have satisfied the basic triad of sentencing considerations—the crime, the criminal and the interests of society—and the primary purposes of punishment. This option, "unfortunately," could not be considered, as the Criminal Procedure Act required the consent of the complainant. The court ruled instead that the sentence should be replaced with a fine of R500 or, in default of payment, to imprisonment for six months, wholly but conditionally suspended for a period of three years.
99:
to "the corrosive and brutalising effect of prison life for such a trifling offence." The price which civil society stood to pay in the end by having
Shilubane emerge from prison a hardened criminal "far outweighs" the advantages to be gained by sending him to jail. The courts must "seriously consider" alternative sentences, like community service, as viable alternatives to direct imprisonment, particularly where the accused was not such a serious threat to society that he needed to be taken away for its protection. Bosielo quoted in this regard from a newspaper article by
98:
There was "abundant empirical evidence" (although
Bosielo cited none) that retributive justice had "failed to stem the ever-increasing wave of crime," to say nothing of "the public hysteria" generated by it. It was "counter-productive," furthermore, "if not self-defeating," to expose a first offender
79:
On review, Bosielo held that the sentence was, in the circumstances of the case, "disturbingly inappropriate," and noted that the magistrate had conceded as much, recommending that he set aside the sentence and replace it with a fine of R500 or, in default of payment, imprisonment for six months. The
70:
Shilubane, the accused, a 35-year-old first-time offender, stole and then cooked seven fowls to the value of R216.16. In a magistrates' court, he pleaded guilty and was duly convicted. Notwithstanding his expression of "genuine remorse," and the fact that he undertook "solemnly" never to reoffend, he
94:
Bosielo felt "constrained to remark" that, unless presiding officers become "innovative and proactive" in opting for alternative sentences to direct imprisonment, South Africa would be unable to solve the problem of the overcrowding of prisons, "another serious social ill concomitant with the
110:
only becomes a deterrent when society perceives the justice system to be efficient, consistent and effective. Rather than focusing on internment, sentencing should focus on what the most effective rehabilitation route would be for the offender, taking into account the gravity of the offence,
95:
plethora of other social ills which are spawned by this overcrowding." Inasmuch as it was "critical" for the maintenance of law and order that criminals be punished for their crimes, it was also "important that presiding officers impose sentences which are humane and balanced."
48:
as an alternative to direct imprisonment, urging that presiding officers be innovative and proactive in opting for such alternatives, and recommending that these alternatives be humane and balanced.
244:"Don't Send Them to Prison Because They Can't Rehabilitate Them! The South African Judiciary Doubts the Executive's Ability to Rehabilitate Offenders: A Note on S v Shilubane 2008 (1) SACR 295 (T)"
80:
State
Advocate, with the agreement of the Deputy Director of Public Prosecutions, concurred that the sentence, in Bosielo's paraphrase, was "shockingly inappropriate" and recommended
58:. It was counter-productive and self-defeating, therefore, to expose first-time offenders to the corrosive and brutalising effect of prison for trifling offences. Such sentences as
115:
Such an approach, wrote
Bosielo, "will benefit our society immensely by excluding the possibility of warped sentences being imposed routinely on people who do not deserve them."
517:
62:
were to be seriously considered where the perpetrator was not such a serious threat to society as for it to be necessary for its protection to imprison him.
512:
507:
165:
29:
84:
a fine of R600 or imprisonment for six months, half of it to be suspended for three years on "suitable conditions."
144:
25:
177:
198:
124:
55:
243:
139:
134:
51:
45:
271:
263:
59:
255:
33:
172:
100:
37:
111:
assessment of the individual and his/her history, social and employment circumstances.
40:
on June 20, 2005. The case is significant primarily for its treatment of questions of
501:
275:
107:
259:
129:
41:
267:
361:
184:
87:
Bosielo cited, as "the guiding light to sentencing," the dictum in
54:, the court found, had failed and was failing to stem the wave of
103:, the former Deputy Minister of Correctional Services:
71:was sentenced to nine months' direct imprisonment.
8:
211:Gillwald, Cheryl. "Crime and punishment."
225:
248:South African Journal on Human Rights
7:
518:Transvaal Provincial Division cases
44:, advocating the consideration of
14:
513:South African criminal case law
242:Mujuzi, Jamil Ddamulir (2008).
28:, was heard and decided in the
508:2005 in South African case law
260:10.1080/19962126.2008.11864959
1:
30:Transvaal Provincial Division
534:
145:South African criminal law
26:South African criminal law
16:South African legal case
206:Articles in periodicals
24:, an important case in
232:2008 (1) SACR 295 (T).
199:Criminal Procedure Act
113:
125:Crime in South Africa
105:
56:crime in South Africa
365:1969 (2) SA 537 (A).
342:1972 (3) SA 611 (A).
188:1969 (2) SA 537 (A).
82:nemine contradicente
140:Retributive justice
135:Restorative justice
52:Retributive justice
46:restorative justice
215:, 17 August 2004.
60:community service
525:
492:
489:
483:
480:
474:
471:
465:
462:
456:
453:
447:
444:
438:
435:
429:
426:
420:
417:
411:
408:
402:
399:
393:
390:
384:
381:
375:
372:
366:
358:
352:
349:
343:
340:
334:
331:
325:
322:
316:
313:
307:
304:
298:
295:
289:
286:
280:
279:
239:
233:
230:
533:
532:
528:
527:
526:
524:
523:
522:
498:
497:
496:
495:
490:
486:
481:
477:
472:
468:
463:
459:
454:
450:
445:
441:
436:
432:
427:
423:
418:
414:
409:
405:
400:
396:
392:Act 51 of 1977.
391:
387:
382:
378:
373:
369:
359:
355:
350:
346:
341:
337:
332:
328:
323:
319:
314:
310:
305:
301:
296:
292:
287:
283:
241:
240:
236:
231:
227:
222:
208:
195:
158:
153:
121:
101:Cheryl Gillwald
77:
68:
17:
12:
11:
5:
531:
529:
521:
520:
515:
510:
500:
499:
494:
493:
484:
482:Gillwald 2004.
475:
466:
457:
448:
439:
430:
421:
412:
403:
394:
385:
376:
367:
353:
344:
335:
326:
317:
308:
299:
290:
281:
254:(2): 330–340.
234:
224:
223:
221:
218:
217:
216:
207:
204:
203:
202:
194:
191:
190:
189:
181:
169:
157:
154:
152:
149:
148:
147:
142:
137:
132:
127:
120:
117:
76:
73:
67:
64:
15:
13:
10:
9:
6:
4:
3:
2:
530:
519:
516:
514:
511:
509:
506:
505:
503:
488:
485:
479:
476:
470:
467:
461:
458:
452:
449:
443:
440:
434:
431:
425:
422:
416:
413:
407:
404:
398:
395:
389:
386:
380:
377:
371:
368:
364:
363:
357:
354:
348:
345:
339:
336:
330:
327:
321:
318:
312:
309:
303:
300:
294:
291:
285:
282:
277:
273:
269:
265:
261:
257:
253:
249:
245:
238:
235:
229:
226:
219:
214:
210:
209:
205:
200:
197:
196:
192:
187:
186:
182:
179:
175:
174:
170:
167:
163:
162:S v Shilubane
160:
159:
155:
150:
146:
143:
141:
138:
136:
133:
131:
128:
126:
123:
122:
118:
116:
112:
109:
108:Incarceration
104:
102:
96:
92:
90:
85:
83:
74:
72:
65:
63:
61:
57:
53:
49:
47:
43:
39:
35:
31:
27:
23:
22:
21:S v Shilubane
487:
478:
469:
460:
451:
442:
433:
424:
415:
406:
397:
388:
379:
370:
360:
356:
347:
338:
329:
320:
311:
302:
293:
284:
251:
247:
237:
228:
212:
183:
171:
161:
114:
106:
97:
93:
88:
86:
81:
78:
69:
50:
20:
19:
18:
306:Paras 2, 7.
288:Paras 2, 4.
201:51 of 1977.
193:Legislation
502:Categories
151:References
130:Punishment
42:punishment
276:141979900
268:0258-7203
176:1972 (3)
164:2008 (1)
38:Bosielo J
34:Shongwe J
362:S v Zinn
213:This Day
185:S v Zinn
180:611 (A).
168:295 (T).
156:Case law
119:See also
75:Judgment
491:Para 6.
473:Para 6.
464:Para 5.
455:Para 1.
446:Para 5.
437:Para 5.
428:Para 1.
419:Para 5.
410:Para 7.
383:Para 4.
333:Para 4.
324:Para 3.
315:Para 2.
297:Para 2.
401:s 300.
274:
266:
374:540G.
351:614D.
272:S2CID
220:Notes
173:S v V
89:S v V
66:Facts
264:ISSN
166:SACR
36:and
256:doi
32:by
504::
270:.
262:.
252:24
250:.
246:.
178:SA
278:.
258::
Text is available under the Creative Commons Attribution-ShareAlike License. Additional terms may apply.