Lying in the Sun

Pistorius the Sentence

Pistorius the Sentence


Sky News spoke with South African Criminal Lawyer, Mannie Witz re the sentencing in the Oscar Pitorius case.


Sky:

Well we are joined now from Pretoria where the sentencing will take place on Tuesday, by criminal lawyer Mannie Witz

Perhaps it would be helpful  if you outline what are the options which are available to the judge?


Mannie Witz:

Good evening to you, and evening to the viewers, and I’ll give you very simple options.

In South African Law he has been very fortunate that he has escaped, if it was a murder charge, what is called the minimum sentence which has been in since 1998.  Our legislator in view of the violent crime made a change to our law and imposed what is called a minimum sentence.  It would have been 15 years for a first offender or 20 years for a first offender, and if you could show substantial and compelling circumstances the judge could deviate from the minimum sentence which would normally entail direct imprisonment.

With culpable homicide you've got a variety of options open to you as a judge. 

The maximum that you can give, and it’s not a maximum sentence or a minimum it's 15 years direct imprisonment, so the judge can either in her discretion after weighing up all the factors decide to impose either direct imprisonment or give a period of direct imprisonment and impose a number of years for a period of 5 years. 

There are also alternative options open to the judge.  There could be a fine or a suspended sentence, or what the Defence has been asking for which is Section 276/ 1 (h) of our new Criminal Procedures Act from 1977 as amended, which means a sentence of up to three years, you can’t go more than three years, but it is non- custodial, no direct imprisonment.    It entails house arrest and it also entails various community service, minimum of 16 hours a month to the community to pay back, to show the community that you’re paying back, together with various conditions, social programmes etc.

The alternative to that is Section 276/1 (i) which is a maximum of 5 years but what it means is, you have to go into prison for a minimum of 1/6 of your sentence, which is 10 months direct imprisonment.  Thereafter it can be converted, the balance of the sentence, to corrective supervision, house arrest , various programmes and community service.

So those are the types of options, and she could also decide to impose compensation to give something back to the family of the deceased, that’s also the judges discretion.

Sky:

Okay, so an awful lot for her to think about.   I mean I know I am asking you to speculate but what do you think will happen?


Mannie Witz:

Look, I think if you take into account as we talk about…what used to be… it’s called the triad of sentence, not the Chinese Triads, but triad that is:

  • The seriousness of the offence
  • The interest of the community at large, our general population
  • And the personal circumstances, together with the fourth leg of sentence which is the element of mercy.

Anything the judge could consider, possibly, maybe 10 years imprisonment, suspend 3 years for a period of 5 years, and if the judge is not as sympathetic  she might give up to 10 years.  

I would say anyway, if direct imprisonment is imposed, between 7 to 10 years.

If the judge decides to use alternative sentencing, then I could see something like Section 276/1 (h) that would be 3 years.  It wouldn't pay to give him the 10 months inside, because he is really a broken person, and I think his personal circumstances, his disability speaks for itself.

Could be any of those!

Sky:

Okay, interesting!   Mannie it's thrown in the last week hasn’t it, the prison system the conditions of prison system into sharp focus hasn’t it, for the rest of the world to see?

Mannie witz:

No, no definitely, our prison system, in fact our whole justice system is under the spotlight and under the spotlight of the world, and I think our prison system, the Corrective Services Department are really really trying, but it is the same as anywhere in the world we've got, overcrowding, we've got various internal problems within prisons so they’re trying to do their best, and if its somebody with a disability they try their best to cater for somebody with a disability.  But you know there are problems in the prison system in SA. 

They are trying to paint a picture, but I think what they are saying in theory doesn't always work in practice, but I mean they really are trying their best to improve what has been a few serious problems, and I think the new acting Commissioner, seems to be the Commissioner who gave evidence, is really, to his credit, really trying to turn things around, to try and make sure that our Corrective Services Department is a success and they do curb all the rampant problems that they've had in the past.  It’s definitely improved.

Sky:

Well one of the things that has struck many people is how slow the process is to get to this stage where it is now Tuesday that sentencing will happen.   Mannie how do you think Judge Masipa has handled the case, what has been such a high profile case, you trained with her, didn’t you?

Mannie Witz:

Yes, she was my pupil in 1991 when she was an advocate and then soon thereafter a few years thereafter she was the second black female appointed as a judge in the new South Africa.  So she worked under me in 1991. 


Very, very diligent, very hard working woman, and look the spotlight not only of the country but the world has been on her, and I think to a large extent she has been very impassive, she hasn't been intrusive, she has allowed the parties to present their evidence, she has allowed a lot to go through, and I think at the end of the day she’s really acquitted herself well.


There’s a lot of dispute amongst various legal academics, and other people as to whether or not her Judgement is correct, but you know, you always get a happy party and an unhappy party, and you always have your right of appeal.  If you feel the judge has misdirected herself or himself, you can always apply for leave to appeal and you can go to a full Bench, where you will either get three or five judges, and sometimes things are corrected on appeal, or there is a new decision on appeal, either on regards to the question of law or to the question of sentence, depending what sentence is imposed.

So I’ve got no doubt if it is a sentence of direct imprisonment  the Defence will definitely appeal.  I don’t think they want their client to spend any time behind bars. 

And the other problem of course if there is direct imprisonment, I have no doubt that the State, Gerrie Nel will apply to have the bail withdrawn, and now he will have a stronger bow in his arrow  by saying - look now he’s got a direct sentence of imprisonment he’s got a bigger reason to flee and  be a flight risk, and he might as well start serving his sentence now, and I don’t think another Court would overturn or impose  a fully suspended or non- custodial sentence.   So there’s a lot still that’s going to happen on Tuesday.

Sky:

Certainly is.

Mannie Witz:

And cross appeals by the State in regards to the question of law, even on the possession of the ammunition.  Some people believe from the legal academic side and lawyers, that there might be a mistake in regards the application of the law in regards to the position of the ammunition. 

There’s a lot still to come, appeals, cross appeals and the sentence, most important, itself.

END


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19th October 2014

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