CRW2601 EXAM
SUMMARY 2022/2023
,RETRIBUTIVE THEORIES
Retributive or absolute theories of punishment, "perhaps the best known with ancient
roots,"[9] aim to restore the legal balance upset by the crime; they are also known as
"just desert." [10] Ancient notions of justice, including the idea of "an eye for an eye" (the
ancient lex talionis), "clearly informed this theory of punishment." [11]
In modern criminal law, "one should be careful not to
confuse retribution with vengeance." [12] The focus now is not on vengeance, private or
otherwise; it is, rather, "a more nuanced and enlightened attempt to restore the
balance that was disturbed by the criminal conduct." [13] It has been argued,
accordingly, that it would be more appropriate to refer to this approach as "restorative
justice." [14] An important point or premise to keep in mind, when considering the
retributive theory of punishment, is the fundamental notion of criminal law that
individuals are personally responsible for their own wrongdoing. This is the idea of
self-determinism or free will. [15] Retributive theories generally take proportionality into
account and consider the perpetrator's record of previous wrongdoing. They do not
seek to justify punishment with reference to some future benefit which it may achieve;
it is incorrect, in fact, to describe retribution as a "purpose of punishment." Retribution,
according to this theory, is the essential characteristic of punishment.
UTILITARIAN THEORIES
There are three types of utilitarian or relative theories of punishment:
1. prevention;
2. deterrence; and
3. reformation.
The first two, deterrence and prevention, are connected, in that the goal of deterrence
is to prevent recidivism or repeat offending.
PREVENTIVE
According to the preventive theory of punishment, the purpose of punishment is the
prevention of crime. This theory can overlap with its deterrent and reformative
counterparts, since both deterrence and reformation may be seen merely as methods
of preventing crime. Among the "less drastic examples of the preventive approach"
are "(preventive) imprisonment, and the forfeiture of a driver's license." [17]
On the other hand, there are other forms of punishment (such as capital
punishment and life imprisonment, and the castration of sexual offenders) which are in
line with the preventive purpose, but which do not necessarily serve also the aims of
reformation and deterrence. [18] These forms are "the most extreme manifestation" of
the preventive theory: "The criminal offender is permanently incapacitated and can no
longer pose a risk to society." [19] Capital punishment "can also be seen as the ultimate
form of retribution." [20]
DETERRENT
Of all the relative theories, the theory that punishment should serve as a deterrent "is
arguably the most popular." [21] There is an important distinction to be made between
1. individual deterrence, which is aimed at the deterrence of a certain
individual from the commission of further crimes, by individualising the
punishment; and
2. general deterrence, "aimed at a wider audience," [22] which seeks to deter
the entire community, or at least a significant portion, from committing
the type of crime in question.
Individual deterrence may be said to be aimed primarily at the prevention of
recidivism, although the rate of recidivism in South Africa is around ninety per
cent,[23] which would seem to suggest that it is not meeting with success.
Page 2 of 60
,Morgan Oosthuizen
SOUTH AFRICAN CRIMINAL LAW
If the punishment meted out to the individual offender is "disproportionately harsh" in
its service as a warning to the rest of society, "the punishment can no longer be
described as a 'just desert' (in terms of the retributive theory) and, in the South African
context, there might also be a constitutional objection." [24] Accordingly, "the general
deterrent approach to punishment is [...] less attractive (at least not as attractive as the
retributive theory, which holds out the possibility of better proportionality)." [25]
REFORMATIVE
The third of the utilitarian or relative theories of punishment is the reformative theory,
which is encapsulated by the judgment in S v Shilubane, [26] where the court found
"abundant empirical evidence"—it cited none, though—that retributive justice had
"failed to stem the ever-increasing wave of crime" in South Africa. [27] The courts, it
decided, must therefore "seriously consider" alternative sentences, like community
service, as viable alternatives to direct imprisonment. [28] A reformatory approach, the
court found, would "benefit our society immensely by excluding the possibility of
warped sentences being imposed routinely on people who do not deserve them." [29]
"This approach," write Kemp et al, "is, on the face of it, quite attractive, since it
purports to be sophisticated and aimed not at retribution, but at reform (which
connotes positive impressions of the betterment of individuals and society)." [30] There
are, however, "many practical and theoretical objections." [31] They all come down, in
essence, to the contention that reformation "does not actually work in practice--the
criminal justice system is simply not good at 'reforming' people." [32] Furthermore, "there
is also a theoretical/moral objection: if the focus is only on the individual offender that
needs to be reformed, then there is no justice in terms of the victims or the broader
society. That leaves the very real impression or perception that 'justice was not
served.'" [33]
COMBINATION THEORIES
Because "the various theories of punishment all contain positive and negative
aspects," [34] an "obvious approach should therefore be a well-balanced combination of
the elements that are best suitable in terms of the interests of society, the individual
offender and the nature of the crime." [35] In criminal law, this is known as "the
combination theory of punishment." [36]
The most-cited and -generally accepted of the combination theories is that laid out
in S v Zinn, [37] where Rumpff JA laid out a basic triad of sentencing considerations:
1. the crime;
2. the offender; and
3. the interests of society. [38]
This judgment has been taken as "confirming the combination theory as the best
approach" in South African law. [39]
In S v Makwanyane, [40] which eliminated capital punishment in South Africa,
Chaskalson P provided a clearer combination of the other theories of punishment,
laying emphasis on deterrence, prevention and retribution. [41] S v Rabie, [42] Although
recognised as a legitimate object of punishment, retribution should not, according to
the court, be given undue weight, given South Africa’s human rights ethos and the role
to be played by ubuntu in society; the primary object of punishment should be
prevention and rehabilitation, not revenge. The court held that "punishment should fit
the criminal as well as the crime, be fair to society, and be blended with a measure of
mercy according to the circumstances." [43]
The court in S v Salzwedel [44] held that among the aggravating factors to be
considered in sentencing was racial motivation in the commission of a serious offence,
because racism subverted the fundamental premises of the ethos of human rights
which now, after the negotiated settlement, permeated South Africa's processes of
judicial interpretation and discretion. The court decided that a substantial term of
imprisonment, for a murder committed out of racism, would give expression to the
Page 3 of 60
, Morgan Oosthuizen
SOUTH AFRICAN CRIMINAL LAW
community's legitimate feelings of outrage. It would also send out a strong message
that the courts will not tolerate—they will deal severely with—serious crimes
perpetrated in consequence of racist and intolerant values inconsistent with the ethos
of the Constitution.
In S v Combrink [45] the court held that, given the public ire with sentences which
appear to favour a particular group in society, the court must exercise judicial
sensitivity in cases which appear to have racial or discriminatory connotations. The
public interest against discrimination is not necessarily in discrimination between black
and white, but rather between people in general who perceive others, with prejudice,
to be different or inferior to them. In order properly to combat hate crimes, decision
makers in the criminal justice system should be attuned to the fact that the effects go
far beyond the victims, serving to traumatise whole communities and damaging South
African society.
PRINCIPLE OF LEGALITY
According to the principle of legality, the State may inflict punishment only for
contraventions of a designated crime created by a law that, before the contravention,
was in force, valid and applicable. [46][47] It is a corollary of the rule of law: an idea
developed, mainly during the 17th and 18th centuries, by such political philosophers
as Montesquieu and Beccaria, "in reaction to the harshness and arbitrariness of the
political systems of their day." [48] The doctrine of the rule of law holds that people
should be governed by and according to law (a body of established and impartial
rules), rather than by "the arbitrary whims of those in power," [49] and that everyone,
including those in power, should be subject to the law. No-one should be "above the
law." The principle of legality is summed up in the dictum nullum crimen sine lege, "no
crime without a law." This principle, "basic to criminal liability in our law," as the court
put it in S v Smit, [50][51] is supplemented by that of nullum crimen sine poena, "no crime
without punishment." [52][53] In R v Zinn, [54] although the court did not make the
assumption that, if an enactment is to create a crime, it should provide either
expressly or by reference for a punishment, it was thought "improbable that if the
lawgiver had intended that the Besluit should create a crime, he would not have taken
the precaution of inserting a penalty—more particularly as this is what appears
generally to have been done." [55] The court in R v Carto held that "to render any act
criminal in our law, there must be some punishment affixed to the commission of the
act," and that "where no law exists affixing such punishment there is no crime in
law."[56] Another important principle is nulla poena sine lege: "no punishment without a
law." To apply the principle of legality, it is important that the definitions both of
common-law and of statutory crimes be reasonably precise and settled. Penal statutes
should be strictly construed; the law should be accessible. [57] Finally, there is the
dictum nullum crimen, nulla poena sine praevia lege poenali: "laws and punishments
do not operate retrospectively."
LEGALITY AND THE CONSTITUTION
The South African Constitution entrenches the principle of legality. Its preamble states
that South Africa is founded on the supremacy of the Constitution and the rule of
law.[58]The Bill of Rights, meanwhile, provides that "every accused person has a right
to a fair trial, which includes the right
1. not to be convicted for an act or omission that was not an offence under
either national or international law at the time it was committed or
omitted; [and]
2. "to the benefit of the least severe of the prescribed punishments if the
prescribed punishment for the offence has been changed between the
time that the offence was committed and the time of sentencing." [59]
In terms of the ius certum principle (the principle of certainty), the crime must not, as
formulated, be vague or unclear. The subject must understand exactly what is
Page 4 of 60
