The Child Justice Act 75 of 2008 establishes a criminal justice system for child accused, separate from the criminal justice system which continues to apply for adult accused in South Africa. The Act aims to keep children out of detention and away from the formal criminal justice system, mainly through diversion. When these interventions would be inadequate or unsuccessful, the Act provides for child offenders to the tried and sentenced in child justice courts. Until now there has been little discussion of the details of the provisions dealing with sentencing. Sentencing in a child justice court is regulated by chapter 10 of the Act and section 68 is the first section in this chapter. This section effectively amounts to the “jurisdictional” provision of the new child sentencing system: it not only mandates child justice courts to impose their sentences in terms of the Act, but also provides the first set of boundaries (or the first part of the framework) within which sentencing should take place. Despite its brevity, section 68 is not without interpretative challenges. Of course, it has to be interpreted within the context of the entire Act. Explaining this context is the first function of this article. The various aspects of section 68 are further critically explored and discussed.
This contribution considers the Constitutional Court of South Africa's judgments regarding aspects of sentencing. It starts with an overview of relevant judgments, before attending in more detail to judgments on the minimum sentences legislation and on sentencing when it affects children. On this foundation, the article then discusses the human rights that are affected by the imposition of sentences on offenders, before attempting to identify what the next instalment of Constitutional Court judgments might bring to the sentencing table.This article offers a collection and collation of judgments that share one common element, namely that they have something to say about an aspect of sentencing. The value of such an approach is that it provides the first step to answering the following question: The Constitutional Court has been active for 20 years; what do we learn about sentencing from its judgments during this time? KeywordsSentencing; criminal sentences in South Africa; cruel, inhuman or degrading punishment; dignity and sentencing; Constitutional Court ……………………………………………………….
It is a safe assumption that robbery exists, as a crime, in virtually every legal system. Very broadly spoken, it is a crime that consists of the forceful taking of another person’s property. Robbery is often regarded as one of the more serious crimes that can be committed. Such seriousness is then reflected in the severity of the sentence imposed on the robber. However, not all robberies are equally serious. What factors determine whether one robbery is more or less serious than another? From a South African perspective, the answer to this question is far from certain. This uncertainty exists even though robbery is prevalent – in other words, there is much potential in South African criminal justice to provide a more certain answer. This contribution explains how South African courts approach sentencing for robbery. It starts by briefly discussing the definition of robbery and then moves to principles governing sentencing in South Africa in general, and the sentencing of robbery in particular.1 I then briefly discuss the same subject matter in German law. Finally, the contribution analyses the most pressing issues afflicting sentencing in South Africa and, in this process, contrasts the legal principles that are in place in Germany.
Many of the most serious crimes that can be committed in South Africa are, since 1998, subject to mandatory minimum sentences prescribed in legislation. This legislation was originally introduced as a short-term measure, yet has now become a permanent fixture. This article looks critically at the mandatory sentencing legislation in South Africa, drawing comparisons with similar legislation in Australia. It also examines some of the consequences of such legislation not properly foreseen in South Africa, in particular the escalation in the prison population. In taking an internationally comparative approach, this article contributes to the contemporary debate on mandatory sentencing.
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