S v Shilubane

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S v Shilubane , an important case in South African criminal law, was heard and adjudicated in the Transvaal Provincial Division by Shongwe J and Bosielo J on June 20, 2005. The case is particularly important for its treatment of questions about punishment, advocating restorative justice considerations as an alternative to direct imprisonment, insisting that the lead officer be innovative and proactive in choosing the alternative, and recommend that this alternative be humane and balanced.

Retributive justice, the court found, has failed and failed to stem the tide of crime in South Africa. It is counter-productive and self-defeating, therefore, to expose first-time offenders to the corrosive and brutal effects of prison for trivial offenses. Such sentences as community services should be taken seriously where the perpetrator is not a serious threat to the community, because it requires protection to imprison him.

Video S v Shilubane

Fakta

Shilubane, the defendant, the first 35 years of the perpetrator, stole and then cooked seven birds with R216.16. In a judge's court, he pleads guilty and is punished as he ought. Regardless of the expression "sincere regret," and the fact that he "really" never rubbles, he was sentenced to nine months' imprisonment.

Maps S v Shilubane

Judgment

In the review, Bosielo argued that the sentence was, in the circumstances of the case, "annoyingly inappropriate," and noted that the judge had admitted as much, recommending that he rule out the punishment and replace it with a R500 fine or, in failure of payment, imprisonment for six months. The Advocate State, with the approval of the Deputy Director of the Prosecutor, agrees that the sentence, in Bosielo's paraphrase, "surprisingly inappropriate" and recommends nemine contradicente R600 fine or jail for six months, half of which must be suspended for three year on "appropriate conditions."

Bosielo quotes, as "the guiding light to impose punishment," dictum in S v V : "Punishment must be in accordance with crime and crime, just to the defendant and society, and confounded with the measure of mercy." the philosophy of restorative justice, Bosielo has "little doubt" that the complainant would be more than happy to receive compensation for his loss: The compensation order, coupled with probation, would fulfill the basic trials of judgment - crime, crime and public interest - and the ultimate purpose of punishment. This option, "unfortunately," can not be considered, because the Criminal Procedure Law requires the consent of the complainant. However, the court ruled that the sentence should be replaced by an R500 fine or, in failure of payment, to be imprisoned for six months, all but on condition deferred for a period of three years.

Bosielo feels "limited to comment" that, unless the lead officer becomes "innovative and proactive" in choosing an alternative punishment for direct imprisonment, South Africa will not be able to solve the problem of prison density, "other serious social ills [..] other social diseases caused by this density. "So far" critical "for the maintenance of law and order that criminals are punished for their crimes, it is also" important that the lead officer impose a humane and balanced sentence. "

There is "abundant empirical evidence" (though Bosielo does not mention it) that retributive justice has "failed to stem an ever-increasing wave of crime," not to say "public hysteria" produced by it. It is "counter-productive," furthermore, "if not self-defeating," to expose the first perpetrator to "the corrosive and brutal effects of prison life for such trivial breaches." The price paid by civilians in the end by asking Shilubane out of jail, a harsh criminal "far exceeds" the benefits he can gain by sending him to jail. Courts should "seriously consider" alternative punishments, such as community service, as a viable alternative to direct imprisonment, especially when a defendant does not pose a serious threat to society so that he should be taken away for his protection. Bosielo cites in this regard from newspaper articles by Cheryl Gillwald, former Deputy Minister of Correctional Services:

Detention is only a deterrent when people see the justice system as efficient, consistent and effective. Rather than focusing on the internment, punishment should focus on what routes of rehabilitation are most effective for offenders, taking into account the severity of the violations, individual and historical judgments, social and employment circumstances.

Such an approach, writes Bosielo, "would greatly benefit our society by excluding the possibility of regularly imposed penalties on people who do not deserve it."