Court Ruling Upholds Principles of Restorative Justice, Overturns Shaming Sanction

Magistrate Kenney Cooney had sentenced the defendant – who had over 200 prior fraud convictions -- to two years imprisonment to be suspended for five years on condition of 18 months of correctional supervision in the community. As a condition of the suspension, she was ordered to perform 16 hours of community service in a local police station and to stand in the foyer of the city of Port Elizabeth’s Commercial Courthouse wearing the placard. The order also required attendance in courses such as life skills, relationship building, and psychotherapy as well as paying restitution.

After the defendant withdrew her original appeal of the public shaming segment of her sentence, Judges Jeremy Pickering and Jean Nepgen from the High Court asked to review the case. Their reasoning for this unusual move was concern over the constitutionality of the sanction. In his 15 page ruling, Judge Pickering affirmed much of the sentence and the magistrate’s desire to “deal with the harm occasioned to the victims and their need for acknowledgement by the accused of her wrong doing (p. 4).”  However, he goes on to point out how the original sentence departed from this intent.

Judge Pickering’s first reason for setting aside the shaming sanction is an appeal to the South African constitution forbidding the use of ‘cruel, inhuman or degrading’ punishments. He cites different case law supporting his view that requiring a defendant to wear a public admission of guilt is degrading punishment.  He likens this punishment to the use of the pillory or stocks. 

After discussing the unconstitutionality of the sanction, Judge Pickering takes up the magistrate’s statements about restorative justice. He references articles by several writers who argue that sanctions causing shame or labelling the offender are contrary to the principles and goals of restorative justice. He states that “if restorative justice is indeed to make a significant contribution to sentencing options then it must be applied only to appropriate circumstances and must be developed in a constitutionally acceptable manner (p. 13).”

Pickering further explains that ordering the defendant to wear a placard proclaiming guilt does not allow the opportunity for a meeting between victims and offenders neither does it allow for the restoration of relationships.  He states, “In all the circumstances it is regrettable that the regional magistrate missed the opportunity of imposing a condition of suspension which was compatible with restorative justice.

Read the full-text of the ruling.


February 2008