- Title
- Minimum sentencing disparities in the criminal justice system
- Creator
- Minnaar, Evolia Geraldine
- Subject
- Sentences (Criminal procedure)
- Subject
- Sentencing disparities
- Subject
- Criminal Law Amendment Act
- Date Issued
- 2024-04
- Date
- 2024-04
- Type
- Master's theses
- Type
- text
- Identifier
- http://hdl.handle.net/10948/66229
- Identifier
- vital:74444
- Description
- In South Africa, judicial officers have wide discretionary authority with regard to both the type of and the severity of the sentence. Sentencing is a particularly challenging part of the criminal justice process. It is challenging, because South Africa's sentencing system does not have uniform sentencing guidelines that can assist presiding officers in exercising their judicial discretion in the sentencing process. Nor does South Africa have a Sentencing Council to establish sentencing guidelines. Parliament adopted the Criminal Law Amendment Act, which provides for mandatory minimum sentences for certain serious and violent offences. One of the legislation's intended objectives was to advance consistency and avoid disparities in sentencing. The legislation has limited, but not eliminated the court's discretion. A deviation or an escape clause is provided to sentencing courts to depart from the prescribed minimum sentence. If a sentencing court is satisfied that substantial and compelling circumstances exist, departure is justified and a lesser sentence should be imposed. Legislature does not define the phrase "substantial and compelling circumstances". Nor does legislature provide guidance, regarding what the phrase constitutes and does not constitute. Thus, courts have to exercise their judicial discretion when imposing sentences. When interpreting the phrase substantial and compelling circumstances, the courts generally consider that the legislature prescribed minimum sentences as the sentences that should ordinarily be imposed for serious offences. The courts further consider that the legislature aimed to ensure a severe, standardised and consistent response from the courts. Thus, courts should not depart from the prescribed minimum sentence for lightly and flimsy reasons. Further, the traditional mitigating and aggravating factors should still be considered in sentencing. Additionally, if the court considers that the prescribed sentence will be unjust, the court has to depart from the prescribed sentence and impose a lesser sentence. The courts, however, interpret the abovementioned principles inconsistently. This is attributed to the legislature's failure to provide clear, uniform and adequate guidelines to the courts. Disparities in sentencing still permeate South Africa's sentencing system, which creates a challenge to achieve consistency in sentencing. The conclusion of this research is that there is still dissatisfaction with sentencing among the public and sentenced prisoners. Another conclusion of this research is that the legislation has exacerbated prison overcrowding. A further conclusion in this research is that the legislation has not achieved one of its fundamental objectives, namely advancing consistency and avoiding disparities in sentencing. Comparative research is also done in order to see how South Africa's system can be developed and/or improved.
- Description
- Thesis (LMM) -- Faculty of Law, Department of Criminal and Procedural Law, 2024
- Format
- computer
- Format
- online resource
- Format
- application/pdf
- Format
- 1 online resource (98 pages)
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
- Rights
- All Rights Reserved
- Rights
- Open Access
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NMU Department of Criminal and Procedural Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | Ms Minnaar- April 2024.pdf | 1 MB | Adobe Acrobat PDF | View Details Download |