PUNISHMENT THEORIES
Absolute/ retributive punishment: The accused person deserves his/her punishment. Retribution is the
primary justification of punishment advanced by judges in South Africa. The point of departure of these
punishment theories is that punishment must fit the crime.
1 Appeasement or revenge?
2 Just desert (which may facilitate restorative justice
Relative/utilitarian punishment: Punishment is viewed as the means to an end. These punishment
theories regard punishment as beneficial for the community. The primary rationale for these
punishment theories is not the appeasement of society.
1 Prevention or incapacitation
2 Deterrence of the community or the accused
Valid criticism of general deterrence theory
• The accused may be viewed as a mere means to achieve a further goal
• The punishment imposed may be out of proportion with the seriousness of the crime
• An implication of this punishment theory is the assumption that people think rationally before
they decide to commit crimes, which is by no means always so
• There is no proof that people are deterred from crime by punishment imposed on others
3 Reform or rehabilitation (which may facilitate restorative justice)
Restorative Justice
DPP, North Gauteng v Tabethe 2011 SCA after S v Tabethe 2009
,PRINCIPLES OF LEGALITY/NULLUM CRIMEN, NULLA POENA SINE LEGE (NO CRIME, NO PUNISHMENT
W/O LEGISLATION
1 Ius acceptum
S v Solomon case 1973: conduct which had always been a common law crime like conflagration – setting
alight of land – prosecutor wanted court to apply it, but the court refused; didn’t form part of SA
common law; no previous convictions
2 Ius praveium
Massiya case decided before new definitions of rape etc. Anally raped girl. Common law doesn’t see this
as rape. Went to constitutional court to expand definition of rape. Massiya couldn’t be convicted of
rape, only for indecent assault.
3 Ius certum
4 Ius strictum (in favourem libertas)
S v Solomon. Conflagration. Immovable property. Sets caravan alight. Lawyer says caravan is like house
so the person should be incarcerated. But judge will say it will be contrary to ius strictum. Laws must be
interpreted narrowly and not widely. Must not extend definition of law. If there is uncertainty, the
benefit of the doubt must go to the accused.
5 Nulla poena sine lege (no punishment without legislation)
Veldman v Director of Public Prosecutions, Witwatersrand Local Division 2007. Veldman was given
maximum sentence of 15 years, but, when he was incarcerated, the maximum punishment was 10 years
and so he got 10 years after appeals upon appeals
Definition of the proscription
Rex vs Forlee case 1917 man selling opium; convicted; legislation said that nobody was allowed to sell
opium (1909 legislation); old authority said that if something is prohibited by the legislature, then it is
criminalized even if there was no penalty attached; this is against the principle of ius praevium
S v Francis en ‘n Ander case 1994 two men absconded from rehabilitation centre; in terms of 1992
legislation, what they’d done was a crime; in 1992, the law was changed to say that someone who
absconds should be subject to disciplinary procedures; Judge Ackerman said they had contravened old
legislation, but no indication whether the conduct was criminalized; thus it wasn’t criminalized and so
the men were not found guilty
Punishment clause
Director of Public Prosecutions, Western Cape v Prins case 2012. Sexual offences 2007 didn’t provide a
specific punishment. A definition of a proscription and a criminalization cause is sufficient (EP v Prince).
Punishment can be up to the discretion of the courts
,CRIMINAL LAW PROHIBITIONS
Statutory law defining punishments
S v Makwanyane and Another 1995 CC: death penalty; right to life, cruel, inhuman and degrading
punishment, right to human dignity, right to fair trial (rich people can afford expensive lawyers; poor
people may have shoddy representation); right to equality
S v Williams and others 1995 CC: punishment of whipping adult males up until the age of 30. Deterrent;
cost saving (only one whip); punishment is over quickly; parents request whipping. Violated right to
dignity and equality (boys and men and not girls) and bodily integrity
Statutory law defining crimes
Prince v President, Cape Law Society, and Others 2002: right to religious freedom (in terms of 36,
justifiable limitation). Went to African court
S v Jordan and Others (SWEAT and Others as Amicus Curiae) 2002: Prostitute and brothel keeper argued
that the criminalization of prostitution was unconstitutional. Brothel keeper exploiting prostitute thus
worse penalty. Supreme court ruled in favour of prostitute: “for reward” – nice dinner is a sort of
reward. Right to equality (unfair on prostitute, while ignoring client). Freedom of occupation, privacy
and dignity. Majority of Constitutional Court said rights weren’t infringed upon: client can be charged as
an accomplice to crime; women being unfairly discriminated towards (only minority agreed); must be a
lawful occupation; your choice of profession impugning dignity
Common law defining crimes
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1998:
Sodomy. Bodily integrity and equality (discrimination based on sexual orientation) infringed upon.
Morality was the only reason to hold up this law. Morality does not trump equality and human dignity
S (State) vs M 2004 (3): Bestiality – man and a dog. Snyman textbook – feels criminalisation of bestiality
is unconstitutional; if animal is harmed, then prosecution for cruelty to animals anyway; violation of the
right to privacy; dog belonged to someone else: damage to property; freedom of sexual orientation;
existence of crime violates section 12: punishment arbitrary and without good reason; have to infringe
privacy of person to find out if this crime. But don’t know extent of harm to animal; morality; not
consensual; unnatural to have sexual relations between different species; justified limitations on right to
bodily integrity etc; Owner of dog saw this happening; court ruled that bestiality is still illegal
Masiya v DPP, Pretoria and Another 2007 case anally raped: extend definition
, CONDUCT
1 Conduct must be human (not thoughts unless they materialise and not animal unless they act as
agents of humans)
2 Conduct must be voluntary (not automatism unless action in libera causa)
PATHOLOGICAL AUTOMATISM
Must be proven on a balance of probabilities by the accused. This is arguably an unjustifiable and
unreasonable infringement of the constitutionally entrenched presumption of innocence that requires
the prosecution to prove the elements of criminal liability (including criminal capacity) beyond a
reasonable doubt
NON-PATHOLOGICAL AUTOMATISM
1 Sleep
2 Epilepsy
Debate over whether epilepsy is non-pathological. Can this person control their muscles and could they
have anticipated it? Depends on whether they could have reasonably anticipated attack or not.
3 Unconciousness
S v van Rensburg: fell asleep while at the wheel. Hypoglycemia – fall in blood sugar – so drastic that he
wouldn’t have been able to do anything – wasn’t forewarned.
4 Severe provocation/emotional stress
S vs Arnold 1985 did succeed. 41 yo; married to someone 20 y his junior; loved her, but she had a
problem with his youngest hard of hearing child; his mother in law moved in; made Arnold commit the
son to a home; highly emotional; she left and he was upset; she returned and It seemed as if her
position was softening; she was exploiting him; he was stressed by it; she was a striptease artist; she
said she was going to return to this previous profession; he shot and killed her. Psychiatric evidence not
contested by state; he didn’t act voluntarily due to provocation. Court said conduct wasn’t there;
acquittal
5 Severe intoxication
S v Chretien: At a party. Chretien decided he wanted to leave. Got into car to drive off. Saw that people
were standing around. He was convinced they would move out of the way, but they didn’t: 1 dead, 5
injured. He argued that he lacked intent: court accepted evidence and he was acquitted. Judge Rumpff:
Intoxication may influence criminal liability in exactly the same way as youth, insanity, etc. Depends on
degree of intoxication: may exclude voluntary conduct, criminal capacity or intent or be a mitigating
factor at sentencing. Court rejected “specific intent theory” – even general intent may be excluded. But
court emphasised the difficulty of succeeding in raising such a defence: high degree of evidence
Absolute/ retributive punishment: The accused person deserves his/her punishment. Retribution is the
primary justification of punishment advanced by judges in South Africa. The point of departure of these
punishment theories is that punishment must fit the crime.
1 Appeasement or revenge?
2 Just desert (which may facilitate restorative justice
Relative/utilitarian punishment: Punishment is viewed as the means to an end. These punishment
theories regard punishment as beneficial for the community. The primary rationale for these
punishment theories is not the appeasement of society.
1 Prevention or incapacitation
2 Deterrence of the community or the accused
Valid criticism of general deterrence theory
• The accused may be viewed as a mere means to achieve a further goal
• The punishment imposed may be out of proportion with the seriousness of the crime
• An implication of this punishment theory is the assumption that people think rationally before
they decide to commit crimes, which is by no means always so
• There is no proof that people are deterred from crime by punishment imposed on others
3 Reform or rehabilitation (which may facilitate restorative justice)
Restorative Justice
DPP, North Gauteng v Tabethe 2011 SCA after S v Tabethe 2009
,PRINCIPLES OF LEGALITY/NULLUM CRIMEN, NULLA POENA SINE LEGE (NO CRIME, NO PUNISHMENT
W/O LEGISLATION
1 Ius acceptum
S v Solomon case 1973: conduct which had always been a common law crime like conflagration – setting
alight of land – prosecutor wanted court to apply it, but the court refused; didn’t form part of SA
common law; no previous convictions
2 Ius praveium
Massiya case decided before new definitions of rape etc. Anally raped girl. Common law doesn’t see this
as rape. Went to constitutional court to expand definition of rape. Massiya couldn’t be convicted of
rape, only for indecent assault.
3 Ius certum
4 Ius strictum (in favourem libertas)
S v Solomon. Conflagration. Immovable property. Sets caravan alight. Lawyer says caravan is like house
so the person should be incarcerated. But judge will say it will be contrary to ius strictum. Laws must be
interpreted narrowly and not widely. Must not extend definition of law. If there is uncertainty, the
benefit of the doubt must go to the accused.
5 Nulla poena sine lege (no punishment without legislation)
Veldman v Director of Public Prosecutions, Witwatersrand Local Division 2007. Veldman was given
maximum sentence of 15 years, but, when he was incarcerated, the maximum punishment was 10 years
and so he got 10 years after appeals upon appeals
Definition of the proscription
Rex vs Forlee case 1917 man selling opium; convicted; legislation said that nobody was allowed to sell
opium (1909 legislation); old authority said that if something is prohibited by the legislature, then it is
criminalized even if there was no penalty attached; this is against the principle of ius praevium
S v Francis en ‘n Ander case 1994 two men absconded from rehabilitation centre; in terms of 1992
legislation, what they’d done was a crime; in 1992, the law was changed to say that someone who
absconds should be subject to disciplinary procedures; Judge Ackerman said they had contravened old
legislation, but no indication whether the conduct was criminalized; thus it wasn’t criminalized and so
the men were not found guilty
Punishment clause
Director of Public Prosecutions, Western Cape v Prins case 2012. Sexual offences 2007 didn’t provide a
specific punishment. A definition of a proscription and a criminalization cause is sufficient (EP v Prince).
Punishment can be up to the discretion of the courts
,CRIMINAL LAW PROHIBITIONS
Statutory law defining punishments
S v Makwanyane and Another 1995 CC: death penalty; right to life, cruel, inhuman and degrading
punishment, right to human dignity, right to fair trial (rich people can afford expensive lawyers; poor
people may have shoddy representation); right to equality
S v Williams and others 1995 CC: punishment of whipping adult males up until the age of 30. Deterrent;
cost saving (only one whip); punishment is over quickly; parents request whipping. Violated right to
dignity and equality (boys and men and not girls) and bodily integrity
Statutory law defining crimes
Prince v President, Cape Law Society, and Others 2002: right to religious freedom (in terms of 36,
justifiable limitation). Went to African court
S v Jordan and Others (SWEAT and Others as Amicus Curiae) 2002: Prostitute and brothel keeper argued
that the criminalization of prostitution was unconstitutional. Brothel keeper exploiting prostitute thus
worse penalty. Supreme court ruled in favour of prostitute: “for reward” – nice dinner is a sort of
reward. Right to equality (unfair on prostitute, while ignoring client). Freedom of occupation, privacy
and dignity. Majority of Constitutional Court said rights weren’t infringed upon: client can be charged as
an accomplice to crime; women being unfairly discriminated towards (only minority agreed); must be a
lawful occupation; your choice of profession impugning dignity
Common law defining crimes
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1998:
Sodomy. Bodily integrity and equality (discrimination based on sexual orientation) infringed upon.
Morality was the only reason to hold up this law. Morality does not trump equality and human dignity
S (State) vs M 2004 (3): Bestiality – man and a dog. Snyman textbook – feels criminalisation of bestiality
is unconstitutional; if animal is harmed, then prosecution for cruelty to animals anyway; violation of the
right to privacy; dog belonged to someone else: damage to property; freedom of sexual orientation;
existence of crime violates section 12: punishment arbitrary and without good reason; have to infringe
privacy of person to find out if this crime. But don’t know extent of harm to animal; morality; not
consensual; unnatural to have sexual relations between different species; justified limitations on right to
bodily integrity etc; Owner of dog saw this happening; court ruled that bestiality is still illegal
Masiya v DPP, Pretoria and Another 2007 case anally raped: extend definition
, CONDUCT
1 Conduct must be human (not thoughts unless they materialise and not animal unless they act as
agents of humans)
2 Conduct must be voluntary (not automatism unless action in libera causa)
PATHOLOGICAL AUTOMATISM
Must be proven on a balance of probabilities by the accused. This is arguably an unjustifiable and
unreasonable infringement of the constitutionally entrenched presumption of innocence that requires
the prosecution to prove the elements of criminal liability (including criminal capacity) beyond a
reasonable doubt
NON-PATHOLOGICAL AUTOMATISM
1 Sleep
2 Epilepsy
Debate over whether epilepsy is non-pathological. Can this person control their muscles and could they
have anticipated it? Depends on whether they could have reasonably anticipated attack or not.
3 Unconciousness
S v van Rensburg: fell asleep while at the wheel. Hypoglycemia – fall in blood sugar – so drastic that he
wouldn’t have been able to do anything – wasn’t forewarned.
4 Severe provocation/emotional stress
S vs Arnold 1985 did succeed. 41 yo; married to someone 20 y his junior; loved her, but she had a
problem with his youngest hard of hearing child; his mother in law moved in; made Arnold commit the
son to a home; highly emotional; she left and he was upset; she returned and It seemed as if her
position was softening; she was exploiting him; he was stressed by it; she was a striptease artist; she
said she was going to return to this previous profession; he shot and killed her. Psychiatric evidence not
contested by state; he didn’t act voluntarily due to provocation. Court said conduct wasn’t there;
acquittal
5 Severe intoxication
S v Chretien: At a party. Chretien decided he wanted to leave. Got into car to drive off. Saw that people
were standing around. He was convinced they would move out of the way, but they didn’t: 1 dead, 5
injured. He argued that he lacked intent: court accepted evidence and he was acquitted. Judge Rumpff:
Intoxication may influence criminal liability in exactly the same way as youth, insanity, etc. Depends on
degree of intoxication: may exclude voluntary conduct, criminal capacity or intent or be a mitigating
factor at sentencing. Court rejected “specific intent theory” – even general intent may be excluded. But
court emphasised the difficulty of succeeding in raising such a defence: high degree of evidence
