On Monday 13 October the sentencing of Oscar Pistorius commenced at the Pretoria High Court. Last month Pistorius was convicted of culpable homicide in relation to the death of his girlfriend Reeva Steenkamp and was also found guilty of negligently discharging a firearm in a public place in a separate incident. Today Judge Thokozile Masipa handed down a maximum sentence of 5 years imprisonment for the former and a 3 year suspended sentence for the latter. He may not serve the maximum term in prison – under the relevant section of the Criminal Procedure Act 1977 there will be an opportunity to begin a correctional supervision placement after he has served 1/6 of his sentence – in this case 10 months [i].

As the proceedings have been streamed into our lives over the past 7 months, we have come to feel part of this case – the pseudo jury – making judgements about truth and deception, right and wrong, just and unjust. This case has revealed a diverse range of values, attitudes and beliefs, with the sentencing phase seeing emotion running particularly high. The response to today’s news so far has been mixed. Some welcome the custodial sentence and believe it is sufficient, others say it is not lengthy enough – how could Pistorius have taken Reeva Steenkamp’s life and got off with such a “light” sentence? However, if we are to make sense of the sentence in a meaningful way we need to move away from myopia and ethnocentrism and avoid judging South Africa using other criminal justice systems as benchmarks. Only by developing an appreciation of the context can we start to understand Judge Masipa’s reasoning.

Observers may have been somewhat thrown by the term “ubuntu” in the summing up of Barry Roux, Pistorius’s lawyer, on Friday. He made several references to this word, pleading for ubuntu, arguing that it should underpin the sentence. Judge Masipa did not refer to ubuntu directly today, instead talking about “mercy”, but it was clear that ubuntu informed the sentencing decision. So what exactly is ubuntu? Much of the essence of this traditional African concept is lost in translation, rendering it somewhat “slippery” [ii] but it refers to humanity, humanness and humaneness [iii]. Ubuntu places particular value upon unity and togetherness, believing that each of us is a person through other people and “no person is ever isolated” [iv]. In terms of criminal justice, ubuntu ran through the Makwanyane judgement of 1995 – a landmark case in South African legal history relating to the abolition of the death penalty [v]. The remarks of the judges in this case shed further light upon the concept:

While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation (Judge Mokgoro, Para. 308).

It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all (Judge Langa, Para. 224).

Our courts have found room for the exercise of ubuntu, as appears from the many cases where they have found that despite the heinousness of the offence and the brutality with which it was perpetrated, there were factors in the offenders’ favour, indicating that they were, in spite of the criminal conduct of which they were convicted, responsible members of society, and were worthy and capable of rehabilitation (Para 244, Judge Madala).

In terms of the offences for which he was convicted, we could argue that Pistorius’s behaviour was bereft of ubuntu. His actions showed a lack of respect, value, dignity and acceptance towards others. The sentence handed down to him does however embody ubuntu, the inclusion of a custodial period has been carefully considered in terms of Pistoruis’s needs and the flexibility of the South African prison estate to accommodate them. Many would say that Pistorius is undeserving of ubuntu but to do so is to misunderstand it. Some argue that a long and unpleasant custodial sentence would represent justice for Reeva Steenkamp’s family and friends. I would dispute this – much research emphasises that the main thing victims want is for the offender not to commit the crime again. Victims judge sentences in terms of their effectiveness rather than their harshness, their capacity to prevent the offender causing future suffering rather than their ability to make the offender suffer [vi]. And indeed when asked whether justice had been done by a reporter this morning, Reeva Steenkamp’s mother June answered “Yes”.

This is not about giving Pistorius an easy ride or letting him off, enabling him to take advantage of a humane and conciliatory approach to sentencing, which could see him leave prison in August next year and commence a correctional supervision placement. Citing a judgment in another case, Judge Masipa said “True mercy has nothing to do with weakness or sympathy for the criminal but it is an element of justice”. Only through exercising ubuntu towards him can he be encouraged to address the ubuntu deficit in his own behaviour and decisions – particularly his troubling relationship with firearms, which I have discussed elsewhere [vii]. But the buck does not stop with Pistorius. Whether we like it or not, individuals who commit serious and violent crimes are members of society and their behaviour has developed within a social context. If Pistorius is a person through other people should we not also be examining the “community such person happens to be part of” [viii], scrutinising those around him and their role in shaping the person he became? What was going on in his community that enabled his unacceptable behaviour to continue for so long? I would argue that Pistorius’s community were also bereft of ubuntu, too focused upon the gains that came from being associated with a successful, wealthy celebrity to challenge his behaviour, too many “yes people”. They should also be reflecting upon their actions now and assessing the extent to which they too are culpable.

The South African criminal justice system has learned the hard way about the pitfalls of lengthy custodial sentences. The mandatory minimum sentences proscribed by the new ANC government under the 1997 Criminal Law Amendment Act had lasting negative effects. The efforts to demonstrate to its citizens and the world that it had crime under control – using punishment to assert the ‘new’ South Africa’s legitimate authority –simply served to fill up the prison estate. Today, 63 per cent of inmates in South African prisons are serving sentences of between 7 years and life [ix], and whilst the number of people in custody has reduced from its 2004 peak, South Africa still has one of the highest incarceration rates in the world [x]. This sentencing policy said more about the anxieties of a fledgling democracy than it did about the crimes or criminals to which the sentences were being applied. As Judge Masipa stated this morning, sentences that are too severe may “break the accused”, damaging any prospects of rehabilitation or becoming a useful member of society. In twenty first century South Africa, things are changing. Prison still has a role to play but Judge Masipa’s decision is a contemporary example of a balanced, humane and progressive approach to punishment.

Today’s sentence is likely to be unpopular amongst many, but as Judge Masipa stated this morning, “courts do not exist to win popularity contests but exist solely to dispense justice”. Before we criticise we should stand back and reflect – because in examining our views of criminals and punishment we are holding a mirror up to ourselves, as Winston Churchill once said.

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm and dispassionate recognition of the rights of the accused against the state and even of convicted criminals against the state, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry of all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes and an unfaltering faith that there is a treasure, if only you can find it in the heart of every person – these are the symbols which in the treatment of crime and criminals mark and measure the stored up strength of a nation, and are the sign and proof of the living virtue in it [xi].

[i] Department of Correctional Services (2014) Correctional Supervision and Parole Boards [online]. Available at: http://www.dcs.gov.za/Services/CorrectionalSupervisionandParoleBoards.aspx Accessed 21 October 2014.

[ii] Super, G. (2011). Punishment and the body in the ‘old’ and ‘new’ South Africa: A story of punitive humanism, Theoretical Criminology, 15(4), p 434.

[iii] Louw, D. J. (2007). The African concept of ubuntu and restorative justice. In: D. Sullivan & L. Tifft (eds.) Handbook of Restorative Justice: A global perspective. Abingdon: Routledge, pp. 161-173.

[iv] Louw, D. J. pp. 178-9.

[v] S v T Makwanyane and M Mchunu Case No. CCT/3/94 (6 June 1995).

[vi] See for example: South Africa Truth and Reconciliation Commission (1998) Truth and reconciliation commission of South Africa report. Cape Town: The Commission; Maepa, T (ed.) (2005) Beyond Retribution: Prospects for restorative justice in South Africa. Cape Town: Institute for Security Studies.

[vii] Yardley, E. (2014). Pistorius verdict reflects a troubling relationship with guns. The Conversation UK. 12 September. Available from: https://theconversation.com/pistorius-verdict-reflects-a-troubling-relationship-with-guns-31597

[viii] S v T Makwanyane and M Mchunu (1995) para. 224.

[ix] Judicial Inspectorate for Correctional Services (2013). Annual Report 2013-14 [online]. Available at: (http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202013%20-%202014%20(2).pdf

[x] Super, G. (2014). Twenty years of punishment (and democracy) in South Africa. South African Crime Quarterly, 48, pp.7-15. Available at: http://www.ajol.info/index.php/sacq/article/viewFile/105418/95451

[xi] HC Deb (1955-6) 556 col. 1141-55.

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Dr Elizabeth Yardley

Dr Elizabeth Yardley

Reader in Criminology and Director of the Centre for Applied Criminology at Birmingham City University.