A tendency to be swayed by tears, M’lady


The six-year sentence handed to convicted woman killer Oscar Pistorius by Judge Thokozile Masipa in the High Court in Pretoria is a travesty of justice.

Furthermore, it flies in the face of this government’s efforts to introduce and enforce protection of society’s most vulnerable against violent crime.

Oscar walking on his stumps in court
Oscar walking on his stumps in court

The ANC Women’s League, and indeed all the women of South Africa, are outraged that woman killers are being given “a slap on the wrist” by our courts.

This sentence, less than half that sought by the state and nowhere near the minimum for murder, means that Pistorius will be able to apply for parole after serving half to two-thirds of his sentence.

We must ask if our courts, or certain judges, are treating violence against women with the seriousness it deserves.

That Masipa deviated from prescribed minimum sentencing – on what appears to be the flimsiest of pretexts – gives cause for grave concern. In particular is her emphasis on “genuine remorse” shown by Pistorius.

It is debatable whether remorse is sufficient to mitigate sentencing for murder and it is galling that certain judges have a penchant for “remorseful” killers, including Masipa, according to the law reports.

Consider S v Ntulini (2012) where Masipa sentenced a man convicted of kidnapping and murdering a 14-year-old girl.

The accused and three accomplices abducted the girl at knifepoint. One of them raped her, after which they stabbed her to death.

The accused had a previous conviction and suspended sentence for attempted murder. He admitted to holding the victim’s head while his accomplice slit her throat.

For the murder and kidnapping, Masipa sentenced him to eight years’ imprisonment. The judge wrote that an accused offending during a period of suspension “did not necessarily mean they were a hardened criminal”.

The court record gives an insight to the judge’s reasoning and an apparent tendency to be swayed by tears of an accused.

“The accused has shown the kind of remorse that one sees very rarely in these courts … it is this genuine show of remorse on the part of the accused that weighs very heavily with me,” she said of Ntulini.

“He also apologised in open court to the parents of the deceased for being the cause of their loss and for the pain they went through .”

The judge noted that the accused had also “voluntarily attended 39 sessions of a life-skills programme” while incarcerated, commenting that in taking the initiative to attend these courses the accused “did not have any ulterior motive but was motivated purely by his intention and willingness to turn over a new leaf”.

In rationalising why the mandatory life sentence should not be given, the judges said the accused was a married man and was fully employed

We see a pattern emerging of leniency of sentences with respect to serious offences against women.

Introduced in 1997, prescribed minimum sentences were for certain serious and violent crimes. These were life imprisonment for certain types of murder, armed robbery and certain rape cases (such as rape of a minor and gang rapes).

The law is clear that judges may only “depart downwards” when “substantial and compelling circumstances” exist.

However, the legislation does not provide guidance for the circumstances that are contemplated, allowing judges to exercise their broad judicial discretion, with worrying consequences.

Some of these reasons, which at best lack relevance and at worst may be considered flimsy pretexts, are steadily undermining and eroding the original intent of the legislation, which was to serve as a deterrent against crime and to protect society’s most vulnerable.

This broad discretion is most often applied in cases of gender-based violence, which shows that certain members of our judiciary have little or no comprehension of the gravity and prevalence of this problem in our society.

Take Ntholeng v S (2004), a case involving five counts of rape of girls under 16. In rationalising why the mandatory life sentence should not be given, the judges hearing the matter on appeal said “the accused was a married man and was fully employed”.

Even worse, the judges added that “these were not rapes of the worst kind” – and that “all the complainants did not sustain physical injuries other than those incidental to forced penetration”.

The women of this country do not expect minimum sentencing to be circumvented and flouted with increased regularity by the bench

We clearly have a problem.

Conventional theories around the punishment of offenders may differ, but there is consensus that there should be three main considerations, namely, the prevention of crime, the deterrence of crime and the prospects for rehabilitation of the offender.

Equally important, the punishment should take into account the interests of society, and the rights of the victims and their families to justice.

Who, for instance, is standing up for the late Reeva Steenkamp and her bereaved family as her killer marshals his considerable legal, public relations and other resources to tell not just the court but the entire world why he should not go to jail for a long time?

Offering his views on the role of the judiciary in post-apartheid South Africa, the first justice minister in the democratic South Africa, the late Dullah Omar, said: “Transformation means more than creating representative institutions. It requires developing and understanding the new constitutional order, sensitivity to the structure and ethos of the constitution and its Bill of Rights.”

South Africans facing high levels of abuse against women expect that our judiciary display a particular sensitivity towards, and an awareness of, the high levels of crime against women in this country.

We expect that appropriately severe sentences be handed down in cases of serious and violent crimes against women – sentences “that exclude the possibility of mitigating factors except in exceptional circumstances”.

The women of this country do not expect minimum sentencing to be circumvented and flouted with increased regularity by the bench, especially in the Supreme Court of Appeal.

The women of this country do not expect that our judiciary call the rape of a seven-year-old “not one of the most serious of rapes”, or regard an appellant’s disability, their “moderate to severe asthmatic condition” or their “genuine remorse” as circumstances in mitigation of sentence.

As women of South Africa we expect a judiciary that embraces and reflects the values of our constitution, and of our right as women to be protected from violence against us simply because we are women.

It is up to our courts to enforce the rights of all South Africans; in the case of crime, the rights of victim and offender. It should not give the impression that one is being favoured over the other.

Molewa is a member of the national executive committee of the ANC Women’s League