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How jail time is determined in South Africa

06 June 2018 - 08:14 By Law For All
Judges have many aspects to take into account when sentencing is considered in criminal cases. File photo.
Judges have many aspects to take into account when sentencing is considered in criminal cases. File photo.
Image: Gallo Images/iStockphoto

It is not only the severity of an offence that is taken into account during sentencing. Judges remember that criminals are human beings too‚ so their personal circumstances are taken into account.

Public interest is also weighed. Here‚ Law For All explains how prison sentences are determined in South Africa.


We often celebrate or‚ at times‚ are outraged by the sentences given to offenders for their crimes. As a public‚ we’re either satisfied that the punishment fits the crime‚ or convinced that justice has failed us. However‚ how jail time is determined in South Africa depends on various factors.

Last month‚ convicted “axe murderer” Henri van Breda was found guilty of murdering his parents and brother‚ and the attempted murder of his sister‚ in a trial that made headlines around the world. Van Breda was also charged with one count of obstructing justice for staging the crime scene and inflicting wounds on himself to make it look like he had been a victim in the attack.

Trial judge Siraj Desai is no novice when it comes to handing down sentences in criminal matters. In fact‚ he has presided over many high-profile criminal cases‚ most notably the 2009 murder trial of Najwa Petersen‚ who he sent to jail for 28 years for murdering her husband‚ musician Taliep Petersen.

As the country awaits a fair sentence for Van Breda‚ many are wondering in what way Desai will go about it; and how jail time is determined in South Africa.

How is an appropriate sentence determined?

According to Adv. Jackie Nagtegaal at Law For All‚ the trial courts in South Africa are responsible for sentencing criminal offenders. “It is up to them to determine the type and severity of a sentence in each case” she explains.

“While it isn’t an easy task to determine the appropriate punishment‚ there are three principles that the courts use to guide them in determining the correct sentence” says Nagtegaal. These principles are collectively known as the “Triad of Zinn”: the gravity of the offence‚ the circumstances of the offender‚ and public interest. 

1. The Seriousness of the Crime
Most will agree that it is only fair that the punishment must fit the crime‚ or that the sentence must not be disproportionate to the offence. In deciding on the sentence‚ the court will look at the severity of the offence‚ its impact and explore various aggravating and mitigating factors.

With violent crimes‚ the court will look at the extent of the violence‚ type of weapons used‚ the brutality of the attack‚ and to what extent the victims were harmed amongst other things. 

2. The Personal Circumstances of the Offender
It is easy to forget that criminals are human beings‚ but the courts look at personal circumstances. The offender’s age‚ employment status‚ health status‚ level of intelligence‚ criminal record‚ as well as motives‚ whether the offender was intoxicated when committing the crime and whether the offender has any dependants to care for‚ are a few examples.

According to Nagtegaal‚ Van Breda has no previous convictions or arrests and is still a very young man. “He also suffers depression‚ anxiety and myoclonic epilepsy. A social worker found that Van Breda has been very emotional about the deaths of his parents and brother‚ but according to the State hasn't shown any sympathy for his sister who has lost her entire family. His legal representatives argued he can’t show remorse for something he maintains he didn’t do” says Nagtegaal.

3. The Public Interest
The courts reflect on what type of sentence will best serve the community - whether the sentence needs to stop a criminal from committing more crimes‚ whether rehabilitation is possible and possibly to serve as a deterrent to others.

“The public will have strong feelings and opinions‚ but whether the offender is dangerous and a long period of incarceration will protect the community‚ or the offence is so severe that an increased punishment is necessary to serve as a warning to others are important to look at.The economic and social cost of a long prison sentence must also be considered” according to Nagtegaal.

Do the trial courts have the final say in determining the jail sentence?

Sentences can be appealed if they are believed to be disproportionate to the crime committed or unfairly imposed‚ that is‚ if the sentence could be considered too high or low. This means that the law does provide for improperly imposed sentences to be altered or reversed. It is possible that Van Breda will seek to appeal his case when the time comes.

Are there minimum sentences for certain crimes?

The law requires the courts to hand down prescribed minimum sentences for certain serious crimes‚ such as murder‚ rape‚ human trafficking‚ smuggling of weapons and theft. Judges can only deviate from these minimum sentences if the offender is younger than 18 years old or substantial and compelling circumstances exist to justify the decision.

Nagtegaal explains that Van Breda was found guilty of three counts of premeditated murder and that he stares a minimum of three life sentences in the face.

“Judge Desai asked for reasons why Van Breda should be showed mercy‚ and pleaded for a display of humanity from Breda's side‚ but nothing was forthcoming. It is safe to say that there aren’t any substantial or compelling reasons for Desai to not hand down at least three life sentences." 

Final word

While Judge Desai has indicated that Van Breda's sentencing will be straightforward‚ it is important to remember that the law isn’t always as clear-cut as the public often expects it to be. Criminal trials are lengthy and complicated affairs in which judges have to consider a vast amount of factors in order to hand down fair punishment. We can only hope that justice will prevail.

- Sentencing in the Van Breda case resumes on Thursday.