Litnet

Abstract

South African courts have to deal with the sentencing of convicted accused on a daily basis. While presiding officers are well-trained and experienced in sentencing matters, it seems that compensation orders are not generally invoked as a form of punishment. This article discusses the compensation penalty as a possible means of punishment that could be used in our courts. It could be one of the factors that may help to reduce an accused’s prison sentence and also to compensate the victim who has suffered damage resulting from the criminal activity.

The accused’s constitutional right to a fair trial provides that the lightest possible punishment should be imposed upon him. If a compensation fine is indeed a more lenient sentence, it should then be imposed. The actual sentence rests solely on the discretion of the presiding officer. There are various sentencing options available to the presiding officer, of which life imprisonment is the heaviest, and a fine the most lenient. A fine is a form of punishment which requires the accused to pay an amount of money to the state. A compensation order, on the other hand, is a sentencing option that requires the accused to pay a monetary amount, as determined by the court, to the victim. Notably, the court will not grant such an order if the accused does not have the financial means to pay the compensation. Compensation orders may take various forms and are not limited to monetary amounts. Compensation orders are regulated in terms of sections 297 and 300 of the Criminal Procedure Act 51 of 1977.

Compensation orders in criminal proceedings in South African courts are the exception rather than the rule. Although included as an option in sections 297 and 300, it not regularly exercised by our courts. It may be that some courts are unaware of these types of sentences or that the focus is more geared towards the accused and the interest of the broader community rather than the victims. Consequently, victims in criminal proceedings are more often than not placed in a disadvantaged position as their requests for compensation are frequently disregarded by the courts.

Apart from the specific provisions of the Criminal Procedure Act dealing with such compensation orders, this discussion also deals with some court decisions where these were placed under the spotlight. The Criminal Procedure Act makes provision for compensation orders where damage was caused to the property of victims and where compensation orders can be part of a suspended sentence. Courts have not been consistent in the application of compensation orders. Notably, the recent approach of the Supreme Court of Appeal in DPP v Thabethe [2011] ZASCA 186 and Seedat v S [2016] ZASCA 153 raises further questions about the application of compensation orders in South Africa.

In general, while criminal courts have focused on punishing the accused, the position of the victim has been largely neglected. The theories of punishment, such as retribution, deterrence and rehabilitation, should certainly be considered, but it is time to take cognisance of the position of the victim, especially from a restorative justice perspective. Restorative justice is a prominent concept in South Africa, particularly after the successful completion of the Truth and Reconciliation Commission’s activities. It plays an important role in balancing various sentencing options while at the same time providing an alternative for an accused who has lost all hope. At the same time the community also becomes involved in the restorative justice process, thus creating an inclusive sentencing option.

However, the concept of restorative justice within the criminal justice system has been criticised. Research has shown that older offenders are less susceptible to rehabilitation, while there are some offenders who are very difficult to rehabilitate or never become rehabilitated. Nonetheless, restorative justice sentences could still be utilised to address the imbalances in certain cases, especially where the victim has been severely affected by the offence.

It is submitted that there should be a stronger focus on what is in the best interests of the victims, interests which the courts should promote in furtherance of the development of restorative justice mechanisms in the criminal justice system. One of the possible solutions is compensation orders where an amount of money is paid to the victim of crime as a form of damage. It is true that in punishment, especially for crimes associated with violence, very severe penalties may be imposed on offenders, and in these cases consideration should not be given to imposing a penalty or a compensation order on such persons. That being said, the imposition of a compensation order in a serious case is not inconceivable, especially when all parties are in agreement.

The call is not to impose compensation orders in all serious types of crimes such as rape and murder, but attention should be given where victims request compensation. In Thabethe and Seedat such requests were made by the victims of serious crimes. The victims even stated in Thabethe that it was not their wish for the accused to be imprisoned, but rather for them to receive compensation from the accused. The victim in Seedat made it clear to the court that she would benefit from the imposition of a compensation order as she was in a dire financial situation at the time of the trial. These are serious requests by victims which should not be swept under the rug by our courts. Although the courts in Thabethe and Seedat expressed their concern that compensation orders could send out a wrong message to criminals and the community at large, in Seedat the Supreme Court of Appeal in fact imposed a sentence which was a combination of direct imprisonment and a compensation order. Perhaps it is opportune that the courts listen to the pleas of victims and award this type of compensation where it is requested by the victim. Alternatively, victims should be made aware by the prosecution that these types of sentences are available.

Keywords: accused; compensation orders; Criminal Procedure Act; penalty; punishment; restorative justice; sentencing order; victims

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