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Courts ponder issue of keeping women who don’t pose a risk to society out of prison

Zelna Jansen

Zelna Jansen

Published Dec 6, 2021


by Zelna Jansen

In December 2010, the United Nations (UN) adopted Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules).

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The Rules gives direction as to how member states should consider women’s needs and life stories in the criminal justice and prison system.

The reasoning behind the rules are that women prisoners are one of the vulnerable groups that have specific needs and requirements, and existing prison facilities are specifically designed for male offenders. It also seems that several female offenders do not pose a risk to society.

In March 2020, United Nations Office on Drugs and Crime (UNODC) published a Toolkit on Gender-responsive non-custodial measures, which seeks to provide support and guidance on taking steps to ensure that women in contact with the law are not detained or imprisoned unnecessarily and that detention is used as a measure of last resort.

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This guide strives to provide South African stakeholders and policymakers with guidance on how to mainstream gender perspectives and the best interest of the child. Reference is made to children whose mothers are in conflict with the law.

South Africa became a member of UN in 1945. In terms of section 239 (5) of the Constitution, once South Africa has signed to be a part of an international body, such bodies rules are binding on South Africa. South Africa therefore has an obligation to implement the Bangkok Rules in its laws and policies. 2020 marked the 10th anniversary of the Bangkok Rules.

The anniversary sparked international dialogues on gender sensitive responses to the distinctive needs of women prisoners.

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In particular, what role gender-based violence played in leading women to commit minor, non-violent offences and the impact this had on the best interest of the child when the offender is the primary caregiver.

This is not new to South Africa.

In sentencing, courts do consider: the seriousness of the crime, the personal circumstances of the accused and the interest of society.

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Although, South Africa’s approach towards trial proceedings, sentencing and punishment are, in the main, gender neutral, there has been a few instances where gender considerations were considered. In the case of the State v Ferreira (2004), the court considered gender-based violence (GBV) as a mitigating circumstance in sentencing.

The court used the “battered women syndrome” and stated that the decision of the accused to murder must not be judicially evaluated from a male perspective or an objective perspective but by the court’s placing itself as far as it can in the position of the woman concerned, with a fully detailed account of the abusive relationship and the assistance of expert evidence.

The 2008 case of the State v Ellen Pakkies, which involved a mother strangling her drug addicted son in his sleep. She was found guilty of his murder, and a non-custodial sentence was imposed. In closing arguments, her attorney argued that she was not a villain, but rather a victim. “She has been punished all her life. Imprisonment is not the only appropriate sentence given the facts of the case.” He further argued that the motive for the killing was “self- preservation”.

There is also section 28(2) of the Constitution, which states that the child’s best interests are of paramount importance in every matter concerning the child. Therefore, if the accused is the primary caregiver of the child, the court will have to take into, the best interest of the child.

In South Africa, at least 92% of primary caregivers of children in poor households are women.

These include mothers, grandmothers, and aunts. Custodial measures for women offenders who are the primary caregiver, will therefore indirectly also punish the minor children and extended families. Further, South Africa’s prisons are overcrowded by 30% of capacity and are not suitable for female offenders.

Non-custodial measures in the right circumstances will therefore benefit South Africa. In rehabilitating the offender, keeping the family unit intact and reduce prison overcrowding are amongst some of the benefits. Non-custodial measures require a holistic multi-agency approach from the criminal justice, social development, health, and civil society, to support its safe application.

The UNODC in partnership with the Departments of Justice, Correctional Services, Legal Aid SA, SAPS, and the CALLAS Foundation have launched a pilot project at the Athlone Magistrate’s Court on November 30 this year. The pilot will identify cases wherein GBV played a role and that are suitable for non-custodial measures. The aim of the pilot is to see how best non-custodial measures can be implemented through a holistic multi-agency approach.

The theme for 16 days of activism against GBV is “moving from awareness to accountability”. The launch of the pilot therefore appropriately finds itself during the campaign as the time has come to move from deliberation to action to help women and children that suffer at the hands of their abusers.

*Jansen is a lawyer and CEO of Zelna Jansen Consultancy.

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