Nkosikhulule Nyembezi
SOMETHING is striking about Nhlakanipho Mtshali’s case, convicted by the Newcastle Magistrate’s Court after pleading guilty to stealing shoe polish valued at R170.An act of what might be called antisocial behaviour was followed by terrible ill-treatment. A magistrate with a disturbingly aggressive and intemperate attitude sentenced Mtshali to a fine of R500 or six months imprisonment.Last week, the matter came under automatic review before the KZN High Court (Pietermaritzburg) where Judge Robin Mossop expressed his concern about the case – not only because of the harsh jail sentence but also because the sentencing magistrate was rude to Mtshali, who had represented himself in court.The judge noted that the proper sentence should have been a fine of R500 or an alternative period of incarceration of 30 days. He ordered the Registrar of the Court to ensure Mtshali’s immediate release if he has already served his 30 days.The threat of ill-treatment is always in the background of any similar trial. Mossop highlighted several moments during the trial proceedings where the magistrate acted unacceptably by questioning whether Mtshali was a ‘fool’ and asked him about his level of schooling. Mossop also referred to the magistrate’s ‘unpalatable outburst’ during which she accused Mtshali of lying to her. ‘I am not a sangoma and I’m not a prophet,’ she told him.Shortly before sentencing him, according to Mossop, the magistrate told the accused: ‘I can tell that you are the worst of the worst.’ Mossop said a judicial officer is expected to behave courteously to all people appearing before him or her. ‘To describe Mr Mtshali as being a liar and being the “worst of the worst” was unjustified and intemperate. He was charged with shoplifting, not a crime against humanity. He had recognised the error of his ways,’ said Mossop. He added that this form of conduct is unbecoming of a civilised legal system, should not be permitted to take root and must be stopped now.South Africa’s judicial system is obsessed with prison to a degree that is unlike any other maturing constitutional democracy in the world that overcame similar colonial history. The number of prisoners has remained alarmingly high since the late 1990s.Correctional Services Portfolio Committee Chairperson Anthea Ramolobenga revealed in Parliament on January 21 that South African prisons had an overcrowding rate of 48% in the 2023/2024 financial year, housing 156,000 inmates but only having approved bed spaces for 105,474.She said that to address overcrowding, the department was implementing an “eight-point strategy”, which included: Managing the levels of sentenced offenders by improving the use of community corrections, supervision, release on parole, and transferring inmates between correctional centres to “establish some kind of evenness” of overcrowding as well as encouraging debate on incarceration as a sentence and encouraging appropriate sentences that focus more on rehabilitation, self-sufficiency and offender labour.As the government unveils new court-imposed punishments for those who break the law and new measures to deal with overcrowding in prisons, it might first inquire into why these have failed in the past. Their effectiveness was much contested. They were breached in many cases, rendering perpetrators liable to many months’ imprisonment. Meanwhile, the government ignored the most likely cause of a rise in antisocial incidents: poverty, drugs and substance abuse, resource shortages at the police station level and the collapse of community policing.Correctional centres should be for rehabilitation or public protection. They are no deterrent or they would not be full. Systemic overreliance on custodial punishment is not only ruinously expensive and unsustainable. It is also, as several reports to parliament make clear, dysfunctional and counterproductive. Our scandalously overcrowded jails are dangerous and despairing places struggling to recruit and retain overstretched correctional officers adequately.Resources to facilitate rehabilitative work for inmates are shamefully threadbare, and the cost of banging so many people up has diverted money from services dedicated to reducing the possibility of their reoffending. A vicious cycle of recidivism is a dismal and inevitable outcome.We need a proper national debate on a broken system as part of the forthcoming National Dialogue. A far less kneejerk approach to custodial sentencing, particularly concerning more minor offences, would ease the intolerable pressure on the prison estate. It would also free up much-needed resources to invest in probation, rehabilitation, psychiatric services and addiction counselling. The public would be better protected as a result.It is impossible to see what public good is served by Mtshali’s six months imprisonment, instead of 30 days.Deterrents cannot prevent petty crime; we can only see what lessons can be drawn when one occurs. As for punishment, modern penal theory is built around fines, parole, tagging, community service and restorative processes.Other governments have found effective and aggressive ways to implement such ways forward. Pockets of South Africa’s justice are still in the dark ages, hence the relevance of the High Court's automatic review of cases similar to that of Nhlakanipho Mtshali. The Government of National Unity should have the courage of its convictions and act on all the recommendations on collaborative community safety measures.Nyembezi is a policy analyst, researcher and human rights activist