A pyrrhic victory? Mandatory and minimum sentences in South Africa

This paper examines some of the arguments that have been raised for and against the present sentencing regime

The Criminal Law Amendment Act 105 of 1997 introduced prescribed sentences for specified serious offences into the South African legislative framework. The period preceding Parliament’s third extension of this legislation in April 2005 saw intense lobbying, advocacy, and public debate about the efficacy and desirability of minimum sentences for serious crimes. This paper examines some of the arguments that have been raised for and against the present sentencing regime, and highlights the need for comprehensive sentencing reform in South Africa. The paper examines some key questions: Are mandatory minimum sentences constitutional? Have they deterred or prevented crime? Do they afford better protection to victims? What is the relationship between minimum sentences and prison overcrowding? Finally, the paper questions whether South Africa needs a more comprehensive sentencing reform strategy. 

About the authors

Julia Sloth-Nielsen is a professor in the Law Faculty, University of the Western Cape, and research associate at the Community Law Centre, University of the Western Cape. She is a co-founder of the Civil Society Prison Reform Initiative (CSPRI); an organisation which promotes good governance in prisons, improved delivery of human rights to prisoners, and increased civil society involvement in and access to information about prisons.

Louise Ehlers is a senior project officer with the Criminal Justice Initiative of the Open Society Foundation for South Africa, and convenor of the Roundtable on Minimum Mandatory Sentences held on 31 January 2005.