Imprisoning the Nation: Minimum Sentences in South Africa by Edwin Cameron* Constitutional Court of South Africa * I am indebted to my United States law clerks, Jacob Foster (2007) and Martin Willner (2017), for substantial help, as well ... control, extortion… If you are in need of legal advice regarding extortion and legalities surrounding it, kindly make contact with our offices and we can refer you to a criminal attorney who may be able to advise on the matter. The state of sentencing and prison admission statistics in South Africa does not permit reliable inferences to be drawn about the impact of the mandatory sentences on crime rates or prison populations. We believe in having close and transparent relationships with our clientâs from the outset to final closure of a matter. Extortion is generally punished by a fine or imprisonment, or both. Under South African law, the crime of extortion is classified as a common law crime. We would like to show you a description here but the site won’t allow us. Mandatory and minimum sentences: Considering s 51 of the Criminal Law Amendment Act, 1997. However, in cases where the accused is charged with more than one charge, for instance, rape accompanied by body harm, and the victim is below 16 years old, the minimum charge is life imprisonment. 42 Amends section 322 of the Criminal Procedure Act 51 of 1977 , as follows: paragraph (a) deletes subsection (2A); and paragraph (b) substitutes subsection (6). However, that is likely to change within the next few years. SS Terblanche, Sentencing guidelines for South Africa: Lessons from elsewhere, South African Law Journal, 120(4), 2003, p 858. If one is found guilty of kidnapping, their minimum sentence is five years in prison. A number of criminal justice professionals in the country have expressed apprehension that the mandatory sentences have contributed to the country's high (and rising) prison population. This criticism of “uncertainty” reflects a bid to contest the reallocation of sentencing power ... Constitution of the Republic of South Africa, Act 108 of 1996, are protected. Sentencing in South Africa . These have been repealed. This is not the same as blackmail, as extortion involves a more serious threat. Tel: +27 (0) 12 393 1000 SAPS Head Office Koedoe Building 236 Pretorius Street Pretoria Private Bag X94 Pretoria 0001 GPS Coordinates: S25.74790 E28.18901 The proposals articulate a single sentencing purpose, namely "to punish convicted offenders for the offences of which they have been convicted by limiting their rights or imposing obligations on them in accordance with the requirements of this Act "; (p. 50). Ibid, p 881. The Act originally applied for a period of only two years, but it has subsequently been extended [16] and there is no indication of it being terminated in the near future, although a number of academics have been critical of the legislation (e.g., Terreblanche, 2003; Van Zyl Smit, 2000). Thus, if "substantial and compelling circumstances"; are present to justify a lesser sentence, the court is permitted to deviate from the prescribed sentence as long as the judge provides reasons for the deviation on the record. South-West Africa Affairs Act, 1922: Section 2 (1), so much of section 3 as is unrepealed, and sections 4, 6 and 7. In the case of sexual offences, four of the six common law countries - Botswana, Kenya, Tanzania and Zambia -- have enacted minimum sentences for selected sexual offences, including rape. A. [17] In S v Malgas,[18] the Supreme Court of Appeal decided that, if the prescribed sentence would result in an injustice, this would amount to a substantial and compelling circumstance, and the sentencing court would then impose an appropriate sentence. POPI, Johannesburg & Pretoria/Gauteng, Cape Town/Western Cape, Durban/Kwa Zulu Natal. Part III analyzes several sentencing alternatives and their respective capacities to help South Africa achieve its punishment goals. The courts in South Africa take the crime of extortion very seriously, and have ruled it a schedule one offence meaning that offenders may be punished to the full extent of the law. The punishment for larceny by extortion in New York is, at minimum, a class E felony, which can result in a prison sentence of up to four years. Mandatory Sentences. 30638 THE PRESIDENCY No. Terreblanche, S.S. (1997). In 1998, legislation that called for minimum sentence for specific serious offences and crimes was passed in South Africa, some of which include murder, rape, human trafficking, smuggling of weapons or explosives, and theft. The Commission's proposals assign an important role to proportionality in sentencing (South African Law Commission, 2000). 18 OSF-SA Minimum sentences roundtable report, op cit. First, as noted, most commentators agree (and the judiciary acknowledge) that courts frequently use their discretion to circumvent the prescribed sentence, and second, that the small number of offences included in the legislation (see Appendix E) could not account for the much larger number of admissions to custody. Reviewing the entire report is beyond the scope of this summary; however, it may be useful to review the key proposals advanced by the Commission. REPUBLIC OF SOUTH AFRICA Vol. Schedule 5 offences include murder, attempted murder, treason, rape, corruption, extortion … This can be emotionally draining and straining for the victims and their family, especially if the information being used to extort the person could be damaging to their family relationships, professional relationships or image. We believe that by utilising and maximising the innovative systems currently in place at Anthony Wilton, Thinane Inc we are able to create workable solutions for all our clientâs needs and requirements. Yes. Although the mandatory minimum sentences of imprisonment are harsher than those found in other jurisdictions, the Act specifically provides discretion for the sentencing judge. Head Office. In 2000, the South African Law Commission released a report containing an integrated package of proposals (South African Law Commission, 2000). 2 The problem of crime committed by the youth is, however, not limited to South Africa only, but is a global phenomenon. By 2016, that number had grown to 13,260. The overall effect of the proposed amendments is to make minimum sentences for certain crimes “permanent fixtures”, amongst other things. In 1995, there were 433 people serving life sentences in South Africa. Act 46 of 1935: General Law Amendment Act, 1935: Section 78 and so much of section 101 as is unrepealed. South African law provides minimum sentences of imprisonment for a relatively small range of serious offences, including murder, rape, robbery and serious economic crimes. Under federal and state laws, extortion carries up to a 20-year prison sentence. Terms of Use | SUMMARY The South African prisons are constantly overpopulated and a large amount of incarcerated offenders, who pose no threat to society, should rather be allowed to serve the remainder of their sentences within their communities. In exercising their discretion during sentencing, trial courts are required to consider broad, judge-made guiding principles known as the “triad of Zinn,” named after the 1969 case of S v. Zinn.In Zinn, the Supreme Court, Appellate Division, held that in imposing a sentence, “[w]hat has to be considered is the triad consisting of the crime, the offender and the interests of society.” This gave rise to three general guides in the development of a sentence: the seriousness of the offense, the personal circumstances o… The courts have criticized both the rigidity and vagueness of mandatory minimum sentences. SUMMARY The approach taken by the South African Supreme Court of Appeal in S v Malgas 2001 (2) SA 1222 (SCA) and adopted by Namibian courts … Generally, individuals charged with extortion faces serious penalties, including: Heavy fines; Although there is a chance that the information being used to extort a person may come to light in the course of the investigation, it is vital to stop extortionists and take back the power they attempt to take from their victims. Many of the most serious crimes that can be committed in South Africa are, since 1998, subject to mandatory minimum sentences prescribed in legislation. rape cases allowing for a deviation from the minimum sentences as prescribed by the Combating of Rape Act 8 of 2000? 6.1 Summary. This is happening a lot with extortion syndicates on the rise in South Africa. The only significant mandatory minimum sentences of imprisonment in this jurisdiction were created within the last few years in response to rising crime rates. 510 Cape Town 31 December 2007 No. Sentencing in criminal matters is largely a matter of judicial discretion, except where a minimum sentence is prescribed by statute. Mandatory sentences have been part of the South African penal landscape for many years. This means that it is not written in any legislature but instead it comes through historical legal influences on the South African legal system as well as case law as determined in the courts. (2000). In March 2005, consultations were underway with various agencies and the judiciary, with the purpose of determining whether the mandatory minimum legislation should be renewed. Probation. This feature of the South African provisions – combined with the fact that the penalties are mandatory minimum sentences rather than mandatory sentences – provides courts with more discretion than might otherwise be the case. The best indication appears to be that it will be renewed. Letâs look at a few examples of what extortion entails: In order to prosecute a crime of extortion, it is vital to take the step and lay a charge at a police station. In: M. Tonry and K. Hatlestad (eds.). 19 SS Terblanche, Sentencing guidelines for South Africa: Lessons from elsewhere, South African Law Journal, 120(4), 2003, p 858. and uniformity of sentencing practices by the South African judiciary. The punishment for extortion is normally determined by the circumstances of the crime such as the amount or act being extorted as well as the information being used to extort the person. The material on this website is not intended to be nor should it be relied on as a substitute for legal or other professional advice. 41 Substitutes section 320 of the Criminal Procedure Act 51 of 1977 . See also OSF-SA Minimum sentences roundtable report, op cit, p 12. "; ( Schonteich, Mistry, and Struwig, 2000, p. 6). The proposed statute carries a preamble that articulates its objective as "establishing a comprehensive framework to deter criminal conduct and make society safer by providing for the consistent and just punishment of offenders with sentences that recognize the human dignity of offenders and victims of crime"; (p. 49). 27 Stephan Terblanche Mandatory and minimum sentences: Considering s 51 of The South African government recently criminalised malicious communications in South Africa, setting out a number of vague new messaging rules which could see you facing a … The government has yet to respond officially to the Law Reform Commission's report and there is no indication that a response is forthcoming. The relevant portion of the schedule provides that: Schonteich, M., Mistry, D. and Struwig, J. The mandatory sentencing provisions also contain a clause that allows for judicial discretion: courts may impose a lesser sentence in cases in which "substantial and compelling circumstances exist that justify the imposition of a lesser sentence. Disclaimer: 1 On the extortion count they were sentenced to four years’ imprisonment one of which was suspended for five years on condition that they were not convicted of extortion or of a contravention of s 1 (1) of the Corruption Act 94 of 1992 committed during the period … 6.3 Mandatory Minimum Sentences of Imprisonment, 6.4 Impact of Mandatory Minimum Sentences. It seems unlikely that the mandatory sentences of imprisonment created for serious crimes will be abandoned in the near future. In 2021, Anthony Wilton Inc entered a commercial agreement with SA Online (division lawyers-online.co.za started by Jean-Pierre Murray-Kline) as their primary service provider. Commentary on the mandatory sentencing legislation suggests that these penalties were introduced in large measure to placate public opinion as crime rates are high in South Africa (see discussion in Van Zyl Smit, 2000). Section 51 (2) of the Criminal law Amendment Act 105 of 1997 (the Act) provides for a minimum sentence of 15 years imprisonment, for a first offender, in respect of an offence referred to in Part II of Schedule 2. Depending on the value of the property in question, this crime can escalate to a class D, C, or B felony. The mandatory sentences were created by the 1998 Criminal Law Amendment Act , initially for a period of two years, but remain in effect. Although no evidence has been adduced to suggest these penalties reduce crime rates, a number of politicians continue to support the sentences. The courts in South Africa take the crime of extortion very seriously, and have ruled it a schedule one offence meaning that offenders may be punished to the full extent of the law. An individual faced with extortion charges may face serious legal punishment. South African law provides minimum sentences of imprisonment for a relatively … The Criminal Law Amendment Act enacted minimum sentences for a wide range of the more serious offences. As with most other common law jurisdictions, South African courts have considerable discretion at the sentencing stage of the criminal process. Contact | [19] However, two reasons argue against the position that the mandatory sentences have played a role in this regard. From here an investigation will be opened under a docket and the extortionist will be arrested and charged if there is enough evidence. Lawyers-online.co.za does not guarantee, and accepts no legal liability whatsoever arising from or connected to, the accuracy, reliability, currency or completeness of any material contained on this website. Depending on the nature of the extortion, charges that are brought against the person may be mild or very severe, carrying penalties of everything from fines to jail sentences. 43 and 44 Repeal respectively sections 323 and 325A and 326 of the Criminal Procedure Act 51 of 1977 . The accused were all sentenced in terms of the minimum sentencing legislation. Such an initiative17 Referring to A Blumstein, Prisons, in JQ Wilson & J Peterseia (eds), Crime, ICS Press, California, 1995, p 408. Often protection is a form of extortion, for example protection from gangs or even corrupt police officers threatening arrests unless a person pays up. The statistics of kidnapping in South Africa are saddening. Van Zyl Smit, D. (2000). In 1998, the Criminal Law Amendment Act was passed. Terblanche, The Guide to Sentencing in South Africa, 1999. The legislation thus provides for progressively harsher penalties for repeat offenders. Assessing the impact: Mandatory and minimum sentences in SouthAfrica(2005) 14 SACrimeQuarterly15at15. 26 South African Law Commission (Project 82) Sentencing (A New Sentencing Framework)(2000)asdiscussedbyHoffman-Wandereropcitnote25at229. Privacy Policy | Systematic statistics are not yet available (they will be later in 2005), but anecdotal reports indicate that judges exercise their discretion to circumvent the mandatory sentence in a relatively high proportion of cases. Using the law against someone by threatening to sue them unless they comply with the demand being made, Threatening physical harm against a person in exchange for money, goods or services, And lastly threatening to make a claim against someone such as a police report unless they are able to meet the demands. For example, mandatory sentences were prescribed for drug offences in 1971 ( Act 41 ), and mandatory corporal punishment was prescribed in limited circumstances in 1952 (Neser, 2001). The accepted definition for the crime of extortion is âtaking from another some patrimonial or non-patrimonial advantage by intentionally and unlawfully subjecting that person to pressure which induces him or her to submit to the takingâ according to SAPS. - Featured article by LAWYERS-ONLINE.CO.ZA - June 2019. 20 Ibid, p 881. This arrangement supports access to legal services with a focus on technology and trends. In Cincinnati, Ohio, a 14 years boy was arrested of a restaurant owner. 14 Formulations of the latter grounds of intervention are often couched in particularly vague terms, such as 'inducing a sense of shock' or 'being startlingly inappropriate': See Terblanche (supra) at 495 (and the case and sources cited there.) Moreover, interviews with judges and counsel demonstrate that these professionals "generally preferred the situation before the Act came into effect. Courts may also impose probation sentences for an extortion conviction. Judges have continued to criticize the Act for limiting their discretion (South African Law Commission, 2000). The mandatory sentences introduced for a limited number of offences therefore run counter to the general ethos of sentencing in that country (see Van Zyl Smit, 2000). Sec 285 Criminal Procedure Act 51 of 1977 The punishment for extortion depends on whether force was used in extorting money or other property. 38 of 2007: Criminal Law (Sentencing… While this provision thus omits other potential purposes of sentencing – such as restoration – it nevertheless has the advantage of clarity. The appellants were convicted by the Johannesburg Regional Court of extortion and the unlawful possession of 17 ecstasy tablets. On the other hand, there is no evidence to suggest that additional mandatory sentences are being contemplated. 105 of 1997) (“the Act”) have increased the overall length of sentences handed down for rape. Research reveals that the introduction of these mandatory sentences does not appear to have promoted consistency in sentencing across regions of the country (see Paschke and Sherwin, 2000). The Law Commission proposes an integrated approach to structuring judicial discretion, one comprised of three primary components: (i) statutory principles of sentencing; (ii) creation of an independent Sentencing Council, and (iii) development of comprehensive sentencing guidelines. Use this form to request a call back or an email within 1 working hour from our office. State laws allow for prison sentences of up to 15 years or more for each individual extortion attempt. The least severe mandatory sentence is 15 years imprisonment, rising to 20 and 25 years for offenders with previous convictions for the same offence. Part II analyzes the effectiveness of the mandatory minimum sentencing regime set forth in the Act and specifically discusses the Act's 'failure to achieve South Africa's punishment objectives. Act 22 of 1926: South-West Africa Mental Disorder Act, 1926: So much as is unrepealed. Besides the normal sentencing options, legislation empowers courts to make specific orders in certain circumstances: Sec 92(1)(b) of the Magistrate Courts Act 32 of 1944. Sec 50 Correctional Services Act 111 of 1998. We believe that by transferring our legal knowledge through efficient application we can provide our clientâs with professional legal services. The Ministry responsible for prisons in South Africa is currently investigating the impact of the legislation, and a report, or at least more systematic statistics, should be available later in 2005. 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