Forms of Punishment

Question 1

What did the Thabethe case state regarding restorative justice?

Answer 1

• T was an in-house lover of the victim’s mother. The victim went missing and found her in her boyfriend’s house. T found the victim and she begged him not to tell her mother. T held that he won’t tell her mother if she has sex with him (note that the victim was 15 years of old). This amounted to rape.
• T later had an altercation with his lover, and later decided to turn himself in. During trial, the victim held that she does not want him imprisoned. He was charged with 10 years with 5 years of suspension.
• The court held that this sentence was inappropriate and the SCA overturned the decision and held that he must serve 10 years without a suspended sentence because (a) you cannot apply a suspended sentence to a crime of minimum sentence and (b) that due to the nature of the crime, a rape of a minor, a suspended sentence was grossly inappropriate.

Question 2

What did the Malgas case state regarding minimum sentencing?

Answer 2

• The court in Malgas stated that prescribed minimum sentences are purely a point of departure with regards to sentencing and as essentially considered as what ‘should be’ imposed for such a crime.
• The court should only deviate from such sentence after considering all the circumstances of the cases, weighing up the mitigating and aggravating circumstances and as such determine that there exists a compelling and substantial reasons to deviate from the minimum sentence. In this case, the accused was charged with pre-meditated murder.