ENHANCEMENT OF COMMUNITY–BASED ALTERNATIVES TO
INCARCERATION AT ALL STAGES OF THE CRIMINAL JUSTICE PROCESSIN SOUTH AFRICA
Ronald Mpuru Ntuli and Sonwabo Victor Dlula*
I. INTRODUCTION
Prison overcrowding is one of the largest problems facing the South African criminal justice system
today. Many people may think this issue does not affect them, but the problem becomes important whenovercrowding forces prisoners to be granted early release. In cases of extreme brutality, the sentenceserved by criminals can be short.
Prison overcrowding causes a controversy of positive and negative views concerning theconstruction of more prisons. Supporters claim that building more prisons is the only solution, while
opponents argue that community-based alternatives could be used to reduce the prison population,
address the problems caused by overcrowding and to enhance effective rehabilitation and successful
reintegration of offenders into the community. Treatment services and development programmes arealways an important component to bring about more permanent changes in the conduct and behaviourof the offender.
In South Africa, as in the rest of the world, there is great concern regarding the continual escalationof the prison population. In the absence of community-based alternatives to incarceration, prison
sentences alone have been relied upon to serve the penal function of deterrence, retribution, protectionof the community and rehabilitation.
Regarding penal reform, most leading countries including South Africa have invested in alternative
sentencing options which makes it possible to satisfy the community’s requirements for retribution andprotection whilst keeping offenders with less serious offences out of prison. Therefore, according to
Section 2 of the Correctional Services Act 111 of 1998, the purpose of a correctional system is tocontribute to maintaining and protecting a just, peaceful and safe society by:
1. Enforcing sentences of the courts in a manner prescribed by this act;
2. Detaining all prisoners in safe custody whilst ensuring their human dignity and;3. Promoting social responsibility and human development of all prisoners and persons subjected tocommunity corrections.
One of the important goals of the criminal justice system of any country is to help offenders to
become law-abiding citizens. Incarceration in prison for long periods at a time does not, in itself, lead to
long-term changes that many offenders require in order to return to the community.
Therefore this document aims to share information on the available community based alternatives
to incarceration throughout the criminal justice process in South Africa.
II. TRENDS IN THE PRISON POPULATION IN SOUTH AFRICA
A. Prison Population
As of 31 March 2001 the Department of Correctional Services had cell accommodation for 102,048
prisoners against a total prison population of 170,959 prisoners. The situation constituted a national
average level of 167.53%. The composition of the prison population is reflected below:* Deputy Directors of the Department of Correctional Services
South Africa

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Table 1. The Composition of the Prison Population as at 31 March 2001
Adult

Juvenile

Categories

Total
Male

FemaleMale

FemaleSentenced

98,7782,719

12,814

233

114,535

Unsentenced

41,714

1,067

13,390251

56,424

Total

140,485

3,786

26,204484

170,959

Percentage

82.17%

2.21%

15.33%

0.28%

100%

Source: Department of Correctional Services
Table 2. The Cell Accommodation and Utilisation as at 31-01-2000/ 31-01-2001/ 31-01-2002
1/31/2000
Gender

1/31/2001

1/31/2002

AC1

Prison- Occupaers
tion

AC

Prison- Occupaers
tion

AC

Prison- Occupaers
tion

Female

4,454

4,180

93,85%

4,37

4,157

95.17%

4,066

4,315

106.12%

Male

95,380162,243

170.10%97,646

163,612167.56%

102,024

173,386

169.95%

Total

99,834

166,423

166.70%102,013167,769

164.46%

106,090

177,701167.50%Source: Department of Correctional Services1
The level of the prison population compared to available accommodation clearly demonstrates that
South African prisons are seriously overcrowded.
Table 3. The Approved Accommodation Versus Prisoner Population as of 31 January 2002
Provinces

Capacity

Unsentenced

Sentenced

Total

Occupation[%]

Free State

12,847

3,597

13,173

16,769130.53%

Mpumalanga

7,550

2,086

7,745

9,831

130.21%

KwaZulu-Natal

17,111

11,671

17,64629,317171.33%

Eastern Cape

12,033

6,956

14,72921,685180.21%

Western Cape

19,383

8,095

20,521

28,616

141.63%

North West

6,599

2,826

8,901

11,727

177.71%

Northern Cape

3,055

1,734

5,056

6,790

222.26%

Northern Province

2,315

1,197

4,608

5,805

250.76

Gauteng Province

2,315

18,90428,257

47,161

187.17%

RSA total

106,090

57,066

120.635

177,701167.50%Source: Department Correctional Services
The above figures suggest that there is serious overcrowding in prisons. The continuous increase in
the prison population places an enormous strain on the Department’s available resources and this1

AC: Accommodation Capacity

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remains a real problem that handicaps the proper functioning of Correctional Services in many
respects. It is generally accepted that overcrowding has a negative impact on the human detention andservice delivery to prisoners.
Nonetheless and despite the building of new prisons and renovations of existing prisons,overcrowding continues to place a heavy burden on prison infrastructure and the capacity of prison
managers.
B. Number of Prisoners Awaiting Trial in South Africa
The increase in the number awaiting trial was far greater than the increase in the number of those
who have been sentenced. In December 2000 the detention cycle for prisoners awaiting trial was 136
days. By June this figure decreased slightly to 134 days. This meant that, on average, alleged offenders
are held in prison for over four months awaiting trial. However, in some cases, they are held for years.
The high number of prisoners awaiting trial is an enormous cost to the South African Government.
The cost of imprisonment was estimated at R88.00 per day per prisoner. Based on June 2001 figures ofprisoners awaiting trial, this suggested the state was spending over 4.5 million a day to hold thoseawaiting trial.
These efforts yielded good results, but more is needed to maintain the number of prisoners awaiting
trial at an acceptable level. In recent months this downward trend continued, although at a slower rate:
between December 2000 and June 2001 the number of prisoners awaiting trial dropped by 7%.
Table 4. Number of Prisoners Awaiting Trial: January–June 2001
MonthsJanuary

February

March

April

May

June

Prisoners awaiting
trial

57,69557,67656,42256,15153,47651,559Source: Department of Correctional Services
One of the main reasons for the large number of people held awaiting trial was their inability to pay
bail. In June 2001 a total of 17,588 (34%) prisoners awaiting trial were being held because they could
not afford to pay bail. Over 11,000 of them had bail set at less than R1,000.
Table 5. Number of Prisoners Awaiting Trial Who Were Unable to Pay Bail: June 2001
Amounts

Below R300

R600

R1000

Total below
R1000

Total above
R1000

Prisoners
awaiting trial

2,342

4,208

4,709

11,2596,329

Source: Department of Correctional Services
C. Analysis of Trends in Prison Population in South Africa
The abolition of the death penalty in South Africa in 1995 brought the advent of a new sentencing
dimension in the criminal justice system. This resulted in magistrates opting for longer sentences
especially for those offenders who committed atrocious crimes such as murder, rape, kidnapping, etc.
An increase in the number awaiting trials is another trend that has adverse implications for thealready crowded prisons. This situation is also brought about by congestion and delays in bringing
cases to trial.
It is very important to note that the continuous increase in prison population demanded new
strategies of managing offenders. The realization of this need, saw the introduction of community
corrections in South Africa as an alternative to ease overcrowding in prisons.

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III. COMMUNITY CORRECTIONS IN SOUTH AFRICA
There are two basic alternatives to incarceration, namely correctional supervision and parole
supervision. These alternatives fall under the umbrella of community corrections.
A. Correctional Supervision
Correctional supervision is a community-based sentence, which is served in the community and notin prison subject to conditions as may be determined by a court of law such as house arrest, monitoring,
community service, victim compensation, etc. A person who serves a sentence of correctional
supervision is called a probationer.
Table 6. Daily Average Community Corrections: Probationers as at May 2002
Average for periods
1995

1996

1997

1998

1999

2000

2001

PC EASTERN CAPE

698

1,014

1,175

1,485

2,077

2,876

2,939

PC FREE STATE

1,883

2,397

2,382

2,109

2,013

2,454

2,732

PC GAUTENG

1,987

2,608

2,931

2,970

2,546

2,604

2,752

PC KWAZULU-NATAL

1,114

1,478

1,923

1,913

2,255

2,826

3,465

PC MPUMALANGA

388

733

895

873

986

1,161

1,317

PC NORTH WEST

658

989

1,117

1,203

1,153

1,436

1,738

PC NORTHERN CAPE

487

581

603

747

717

781

855

PC NORTHERN PROVINCE

265

368

573

616

1,209

1,856

1,944

PC WESTERN CAPE

2,860

4,106

4,785

4,598

4,262

4,737

5,066

Source: Department of Correctional Services
The dramatic increase in the probationer population would contribute significantly towards
reducing overcrowding in prisons and lessen costs for maintaining prisoners per day.
1. Background of Correctional Supervision
A South African delegation attended the Eighth United Nations Congress on the Prevention of
Crime and Treatment of Offenders and also visited several countries to gather information on
alternatives to incarceration. It became abundantly clear that the time was ripe for the introduction ofa viable and meaningful community-based alternative in South Africa. While visiting several countries
it was discovered that the system of supervision used in Georgia, in the United States of America could
be adapted to meet local circumstances in South Africa.
Through the co-operation of the Department of Corrections in Georgia, an in-depth study ofcorrectional supervision was undertaken. This culminated in the establishment of multi-disciplinary
task team whose terms of reference was to formulate a South African model based on the Georgia modelof supervision and to draft legislation that would meet South African needs and realities.
On the 6 th May 1991, a white paper was tabled in Parliament, charging the Department ofCorrectional Services with the management of offenders to be placed under community corrections.
Parliament approved the Correctional Services and Supervision Matters Act, 1991 on the 14th June
1991. The Criminal Procedure Act, 1977 as amended in 1991, included the following options:•

Section 276(1)(h) of the Criminal Procedure Act, 1977 empowers the magistrate to sentence anaccused person to a maximum of three years and minimum of one year correctional supervision
after receiving a report from a correctional official or probation officer.

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Section 276(1)(i) of the Criminal Procedure Act, 1977 authorizes the court to impose a sentence ofimprisonment not exceeding 5 years upon an accused person which sentence may be converted into
correctional supervision by the Correctional Supervision and Parole Board, after serving at least 1/6of the sentence.

•

Section 287(4) of the Criminal Procedure Act, 1977 the court may sentence an accused person to
imprisonment with the option of a fine. If an accused person cannot afford to pay a fine, he/she willautomatically face imprisonment, which may be converted by the Correctional Supervision and
Parole Board after serving at least 1/6 of the sentence.

On the 15th August 1991 correctional supervision was introduced in the magisterial districts ofPretoria and Wondedrboom in Gauteng Province. The courts were provided with a sentencing option todeal effectively with those offenders who posed no threat to the community. This community-basedalternative to incarceration was rolled over to eight more provinces.
2. Requirements for Correctional Supervision
According to the Criminal Procedure Act, 1977, accused persons must comply with the following
minimum requirements to be considered for a sentence of correctional supervision. They must:•••

Not pose a threat to the community.
Have a fixed, verifiable address, andHave a means of support or be financially independent.

B. Parole Supervision
Parole supervision refers to the supervision of offenders who have been released from prison upon
the decision of the Correctional Supervision and Parole Board. Parolee means any person placed onparole.
Table 7. Daily Average Community Corrections: Parolees as at May 2002
Average for periods
1995

1996

1997

1998

1999

2000

2001

PC EASTERN CAPE

2,451

3,576

4,163

4,235

4,111

4,953

5,470

PC FREE STATE

1,368

1,787

1,765

1,771

2,020

2,188

2,681

PC GAUTENG

5,851

8,565

9,334

9,929

10,468

10,59910,773PC KWAZULU-NATAL

3,670

6,127

7,391

7,187

7,008

7,578

9,688

PC MPUMALANGA

1,676

2,118

2,301

2,329

2,519

2,546

2,717

PC NORTH WEST

1,236

2,043

2,625

3,311

3,378

3,385

3,513

PC NORTHERN CAPE

1,064

1,335

1,391

1,356

1,392

1,497

1,484

PC NORTHERN PROVINCE

1,145

1,773

2,401

2,280

2,559

2,833

3,472

PC WESTERN CAPE

5,762

7,307

7,765

7,573

6,691

6,436

7,086

All RSA

24,222

34,62939,13539,97040,14542,01546,885

Source: Department of Correctional Services
The sharp increase in the parolee population would reduce the prison population and alleviate theproblems caused by overcrowding.

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1. Background of Parole Supervision
A South African delegation conducted an in-depth investigation into the systems of parole
supervision in other countries. During the years 1992/1993 the Parole Supervision and Amendment Bill
was approved by Parliament, charging the Department of Correctional Services with the supervision ofparolees, to be placed under community corrections.
2. Parole Procedure
The Correctional Supervision and Parole Board (CSPB) is an autonomous body that is chaired by amember of the community. When the Correctional Supervision and Parole Board finds that a prisoner
meets the requirement that parole will better serve the goal of correctional efforts, it determines adefinite date of release, the place where he or she should return and the conditions that the paroleeshould abide by during the period of parole supervision. These requirements include, amongst otherthings, the following; a person who has been sentenced to:(i)

Imprisonment for corrective training may be detained in prison for a period of two years and may
not be placed on parole until he or she has served at least 12 months.

(ii) Imprisonment for the prevention of crime may be detained in a prison for a period of five years andmay not be placed on parole until he or she has served at least two years and six months.
(iii) Life imprisonment may not be placed on parole until he or she has served at least 25 years of thesentence but a prisoner on reaching the age of 65 years may be placed on parole if he or she hasserved at least 15 years of such a sentence.
In South Africa, the decision to release on and revoke parole is the function of the Correctional
Supervision and Parole Board.
C. Placement of Prisoners Awaiting Trial
The Criminal Procedure Act, 1977, as amended in 1991,makes provisions for the magistrates toplace the following categories of offenders under the supervision of correctional officials or thesupervision of Community Corrections.
•

Section 62(f) of the Criminal Procedure Act, 1977 empowers the court to place an adult accused
person who is awaiting trial, under the supervision of a probation officer or correctional official.

•

Section 71 of the Criminal Procedure Act, 1977 makes provision for the placement of persons
awaiting trial who are under the age of 18 years, in custody, may, instead of being released on bail,be placed under the supervision of a correctional official.

The effective utilization of community-based alternatives to incarceration and the placement option
would contribute significantly towards increasing the number of probationers under the system ofcommunity corrections and reduce the number of accused being held in prison awaiting trial.
D. Conditions to which Parolees and Probationers may be Subjected
Parolees and Probationers may be subjected to the following conditions in terms of the Correctional
Services Act, 1998:
1. General Conditions
Parolees and probationers are required to comply meticulously with the following conditions:••••

Refraining from committing criminal offences.
Complying with any reasonable instructions issued by the court.
Refraining from making contact with a particular person or persons.
Refraining from threatening a person or persons by word or action.

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2. Monitoring
Both parolees and probationers will be monitored by correctional officials or appointed volunteers.
They are subject to one of the following categories of supervision:•••

Maximum supervision cases: visited four times per month.
Medium supervision cases: visited twice per month.
Minimum supervision cases: visited once per month.

3. House Arrest
Both Parolees and Probationers are expected to be at their homes at all times, except when theymust report for work, go to school, attend religious services or participate in organised sports such assoccer, cricket etc. The monitoring officials also visit them physically at their homes to ensurecompliance with house arrest conditions.
4. Victim Compensation
The court may order the probationer to pay victim compensation. In the event of such an order, thecorrectional supervision official must ensure that this becomes one of the probationer’s conditions ofcorrectional supervision. Parolees are not required to pay any victim compensation.
5. Community Service
The Court/Correctional Supervision and Parole Board must stipulate the number of hours which
probationers are required to serve, which shall not be less than 16 hours per month. Parolees are notrequired to perform community service but this matter is still under discussion.
6. Correctional Programmes
Parolees and probationers are required to attend specialized programmes aimed at the preventionof further criminality, drug and alcohol abuse, promotion of family relationships and the acquisition ofsocial skills.
7. Restriction to Magisterial District
Parolees and probationers are restricted to their magisterial districts for the duration of their termof community corrections. The supervision committee may grant them permission to leave theirmagisterial districts upon request.
8. Fixed Addresses
Parolees and probationers are not allowed to leave their fixed addresses for the duration of thecommunity corrections term. Any change of address must be communicated to the Head of Community
Corrections immediately.
9. Use or Abuse of Alcohol/Drugs
Parolees and probationers are restricted from using or abusing alcohol/drugs during their term ofcommunity corrections. A correctional official may require parolees and probationers to allow adesignated medical officer to take blood or urine samples in order to establish the presence andconcentration of drugs/alcohol in the blood.
10. Searching
Correctional officials are empowered to search parolees and probationers subjected to community
corrections and may even confiscate any weapon in order to ensure the safety of the correctional
officials or any other persons.
11. Seeking Employment
Both parolees and probationers are required to take up and remain in employment. They may notchange their employment without notifying their correctional supervision official.

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IV. NON-COMPLIANCE WITH CONDITIONS OF COMMUNITY CORRECTIONS
Section 70 of the Correctional Services Act, 1998 (Act 111 of 1998) makes provision for the handlingof non-compliance with conditions of Community Corrections. The court and Correctional Supervision
and Parole Board may apply the following measures, depending on the nature and seriousness of the
non-compliance:•

The court may revoke the correctional supervision sentence imposed upon a probationer, if it issatisfied that the probationer has repeatedly violated his/her conditions, it may even impose analternative sentence which may include imprisonment•

The Correctional Supervision and Parole Board may revoke parole granted to a parolee if it issatisfied that the parolee has repeatedly violated his/her conditions, it may even instruct theparolee to serve the remaining portion of his/her sentence in prison.
V. HIGH CASELOAD

Most countries experience a shortage of staff within community corrections services and South
Africa is no exception in this regard. Community corrections personnel cannot cope with the amount ofwork available. High caseloads are brought about by the fact that there are few monitoring officials andthe demand and volume of work is high. The ratio between personnel and probationer/parolee isreflected as follows:
Table 8. Ratio Between Personnel and Probationer/Parolee

Ratio

1999/2000

2000/2001

1:33

1:34

VI. COST IMPLICATIONSCommunity corrections as a community-based alternative is more cost-effective than incarceration
in South Africa. During the 2000/2001 financial years, the budget per capita cost for offenders under
the system of community corrections was R12.00 compared to today’s cost of R97.75 per day to maintaina prisoner awaiting trial or a convicted prisoner.
VII. OTHER AVAILABLE COMMUNITY-BASED ALTERNATIVES IN SOUTH AFRICA
A. Pre-Trial Stage
1. Pre-Trial Services
The aim of Pre-Trial Services is to enable courts to make more informed bail decisions. Pre-Trial
Services (PTS) is a system whereby relevant information is collected and verified by probation officer
prior to an accuser’s first appearance in court.
PTS does not take away the discretion of the magistrate to make a bail decision, however, it
provides the court with more information. Its most obvious impact has been on the profile of awaiting
trial prisoners in that it has reduced the number of accused persons who cannot afford to pay bail. This
programme has also helped to ensure that:••••

Dangerous suspects are less likely to be released on bail;
Petty offenders are released with a warning or on affordable bail;All accused persons are closely supervised, reducing the likelihood of witness intimidation and court
delays due to failure to appear; andThere is a decrease in the number of prisoners awaiting trial.

If no pre-trial services were considered in South Africa, the number of offenders in our system
would have doubled.

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2. Diversion Programmes
Diversion is a procedure by which people are referred away from the criminal justice system, inorder to deal with him/her in a developmental and strength-based manner, which allows the person totake responsibility for his/her actions and make restitution to the victim and the community.
Diversion programmes essentially try to prevent people who have offended from being imprisonedby providing alternatives to prosecution and convictions. Diversion from the criminal justice system hasa dual function:••

It prevents further exposure to negative influences of the criminal justice process andAttempts to prevent further offending by providing a variety of options

The existence of diversion programmes in South Africa dates as far back as 1990 when the mainconcern was about the number of children being convicted for petty offences. A prosecutor refers young
people who commit petty offences to diversion programmes presented by NICRO. The National
Institute for Crime Prevention and the Reintegration of Offenders (NICRO) a non-governmental,
community-based organisation in partnership with the correctional services and the welfare
department are spearheading the diversion programmes for offenders.
(i) Diversion Process
Firstly, the Bill has certain rules about referral of children to diversion, to ensure that children’s
rights are protected, and that they are not coerced into opting for diversion. The draft Bill says thefollowing in section 51:
1. A child suspected of having committed an offence may only be considered for diversion if:a) Such child voluntarily acknowledges responsibility for the offence;b) The child understands his or her right to remain silent and has not been unduly influenced inacknowledging responsibility;c) There is sufficient evidence to prosecute; andd) Such child and his or her parent or an appropriate adult, if such person is available, consent todiversion and the diversion option.
Secondly, the draft Bill sets out minimum standards applicable to diversion and diversion options in
section 49:
1. No child may be excluded from a diversion programme owing to an inability to pay any fee required
for such programme;
2. A child of ten years or over may be required to perform community service as an element ofdiversion, with due consideration for the child’s age and development;
3. Diversion options must:a) Promote the dignity and well-being of the child, and the development of his or her sense of selfworth and ability to contribute to society;b) Not be exploitative, harmful or hazardous to a child’s physical or mental health;c) Be appropriate to the age and maturity of the child; andd) Not interfere with the child’s schooling.
4. Diversion options must, where reasonably possible:a) Impart useful skills;b) Include a restorative justice element which aims to heal relationships, including therelationship with the victim;c) Include an element which seeks to ensure that the child understands the impact of his or her
behaviour on others, including victims of the offence, and may include compensation or
restitution; and258

121ST INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERSd) Be presented in a location reasonably accessible to children. Children who cannot affordtransport in order to attend a selected diversion programme should, as far as is reasonably
possible, be provided with the means to do so.
Today, diversion programmes are primarily used for juvenile offenders although adults occasionallybenefit from this service. Most participants are between 14 and 18, although some are older or younger.
Upon the completion of a number of hours, this organisation must submit a report to the court
regarding the number of hours performed, which would imply that the order would have been executed.
Amongst others NICRO has developed the following five-structured diversion programme.
(i)Youth Empowerment Scheme (YES): a six-part life skills programme that runs over a period of six
weeks. It involves 15 to 25 participants and parents/guardians participate in the first and lastsessions.

(ii) Pre-Trial Community Service: In lieu of prosecution, the offender has to perform a number ofhours agreed to by all the parties and are monitored by NICRO who has to give reports to the
public prosecutor. As of May 2001 to May 2002-4,273 offenders were ordered under this option.
(iii) Victim Offender Mediation (VOM): Victims and offenders are brought together in an attempt toaddress the needs of both parties.
(iv) Family group conferencing: These conferences are similar to mediation in certain instances exceptthat they involve the families of both the victim and the offender in the mediation process. The aim
is to come to an agreement with the assistance of a mediator/facilitator. Preventing recidivism andstigmatization is the ultimate goal of this programme.
(v)

The Journey: An intensive and long-term programme that involves an outdoor experience foryoung people.

Upon completion of the diversion programme, the case is withdrawn. If the offender fails tocomplete the diversion programme, the case will be referred to the court for prosecution.
As of May 2001 to May 2002, 16,377 cases involving children and young people were diverted out of
the criminal justice system by way of a range of diversion programmes, offered by non-governmentalorganisations which operate in the nine provinces and in partnership with government departments at
a Provincial and National level.
(ii) One Stop Youth Justice Centre: Stepping-Stones
Stepping Stones is a one stop youth justice centre, consisting of a police charge officer; youth court
and welfare component staffed by a probation officer and children and youth care workers. This pilot
project is mainly located in the local community. The aims of the centre are:•

To divert young people in trouble with the law away from the criminal justice system or to prevent
them from going deeper into the system;•

To provide a holistic and comprehensive service to young people in trouble with the law and theirfamilies, from the point of their arrest. Services are based on a developmental, strength-based
approach and is rendered by multidisciplinary teams. This programme embodies the philosophy of
restorative justice with an emphasis on:•

Re-uniting the young people with their families and preventing them from being separated fromtheir families•

Focusing on the least restrictive and most empowering sentence option•

Giving the young people the opportunity to correct the wrongs done through their actions

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Amongst other services provided in this centre are pre-trial assessments and supportive services tothe families, pre-sentence investigations with regard to sentence options, diversion programmes,
probation supervision and preventive counselling services. During the period of January 1999 to
December 1999 about 3,395 young people attended the centre.
B. Sentencing Stage
1. Fines
The Criminal Procedure Act, 1977 stipulates that the court may order the payment of a particular
sum in lieu of a sentence of imprisonment. The court will stipulate the amount of the fine, and the dateby when the fine should be paid. The court may also suspend the payment of a fine for a stipulated
period on the condition that the accused is not convicted of the same offence during the same period.
The court should inform the offender that the payment of the fine could be postponed, or could be
paid in installments on request from the offender. Usually, the court insists that the fine be paid
immediately to release the person from custody.
The court may also instruct the sheriff of the court to issue a warrant to attach certain of theoffender's property in the event that the person is unable to pay the fine, or the court may order that themoney be deducted from the offender's salary.
When sentencing the offender to pay a fine, the court must investigate the ability of the person to
pay the fine. The courts have held that the amount of the fine should be proportionate to the income ofthe offender, so that the offender should be able to pay the fine.
There is usually no fixed amount to be paid in respect of an offence, although some Acts may
determine a minimum or a maximum amount, which the court can impose.
In addition, the Criminal Procedure Act allows the court, in cases of imprisonment for a period of
three months or less, to impose a fine to reduce the term of imprisonment. This option has been widelyused in South Africa. However, in reality those who are not able to pay the fines are sent to prison,
which has an adverse effect on prison overcrowding.
2. Community Service Order
Overcrowding and detention costs led to the introduction of community service orders in South
Africa. The court may make a community service order against an offender convicted of an offence
punishable with imprisonment. Before making the order, the court has to obtain the consent of theoffender and has to be satisfied with the probation officer’s report on the suitability of making such anorder. Under this order, the offender has to perform unpaid work of benefit to the community for anumber of hours, not exceeding 240, within the period of twelve months. The order can be made to or inlieu of any other sentence.
In South Africa, the National Institute of Crime Prevention and Reintegration of Offenders(NICRO), which is a community-based organisation and other relevant organisations, administers
community service orders. These organisations are also responsible for monitoring the execution of theorder. Upon the completion of a number of hours, organisations must submit a report to the court
regarding the number of hours performed, which would imply that the order would have been executed.
The rationale underlying the community service order is to punish the offender in the community
where the offence was committed, away from the prison. This gives offenders the opportunity to makesome general reparation to the community and furthers the notion of community responsibility tooffenders by involving it with correctional programmes.
The target groups for this sentencing option are first time offenders and/or those who commit minor
offences. In the case of employed offenders, this order may be performed on weekends, and for thoseunemployed, during the week.

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When the offender fails to comply with the requirements of the community service order, the court
may issue a summons requiring the offender to be brought before the court. The court may impose afine upon the offender or sentence him or her to imprisonment. As of May 2001 to May 2002, 51 cases
involving juveniles and adult offenders were ordered to serve community service as a form ofpunishment.
Since the direct supervision of offenders on community service orders is carried out under thecontrol of a non-governmental organisation such as NICRO, and not by the Department of Correctional
Services, this arrangement has reportedly proven to be ineffective to ensure that the set conditions are
met.
(i) Selection Criteria
The Criminal Procedure Act specifies that Community Service Orders can only be imposed on
persons of 15 years of age or older who are first time offenders. The minimum period of service must not
be less than 50 hours. Community service may be imposed for any offence other than those for which amaximum sentence is prescribed by law. In order to be considered for such a sentence, the offendermust be willing and must have time to render unpaid service.
(ii) Assessment and Referral Procedures
Usually their attorneys, advocates and the courts refer offenders. The assessment of offenders isdone by a group of professional people who come from different disciplines, e.g. social workers,
probation officers and others. The decision of the panel is based only on the individual offender. Afterthe assessment, a report is prepared for presentation to the court.
People serving community service may be referred to places such as, hospitals, homes for the aged,
police stations, schools or health clinics. The referral of offenders to such places is still a problem
because not all of them are prepared or are able to accept and supervise such offenders.
(iii)Caution and a Discharge
This is the lightest possible sentence, which a court can impose on someone. It is usually imposed
where the offence is so trivial that it does not warrant even a suspended sentence being imposed. The
effect of this sentence is the same as if the court acquitted the person, except that the conviction will berecorded as a previous conviction.
(iv) Compensation OrderA sentence of imprisonment or the payment of a fine may be suspended subject to the condition thatthe offender pays compensation to the victim of the crime. The criminal court can order the offender to
pay money to the victim of the crime.
The difficulty with this sentence is that a criminal court can make a monetary award, which isusually made only by a civil court. A civil court in an action for damages can make an order that aperson pays another person “damages” in a certain amount. This the court does only after evidence has
been put before it as to how the damages are calculated. The Criminal Procedure Act allows thecriminal courts to do the same thing.
This sentence is imposed on relatively few occasions, mainly because it is difficult for the criminal
courts to determine the amount of the award.
3. Suspended Sentence
The Criminal Procedure Act, 1977 provides that:
A magistrate may impose an imprisonment sentence upon an accused found guilty of a crime andmay also suspend the execution of the sentence. The court may, when taking into consideration theage, the past record, behaviour, intelligence, education and training, health, condition of the mind,
habit, occupation and the environment of the offender or the nature of the offence or otherextenuating circumstances, pass judgment, if it thinks fit, that the accused is guilty, but thedetermination of the punishment is to be suspended and then release him/her.

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The suspension ranges from one year to a five-year maximum period. This alternative is widelyused in South Africa.
The court can suspend a sentence of imprisonment or a fine on condition that the offender:
•
•
•
•
•

Pays compensation;
Renders a specific service to the victim;
Does community service;
Be under correctional supervision; orAttends a specific treatment programme.

If the offender does not commit any crime during the suspension period then the sentence is
automatically dismissed. There is no supervision during the period of suspension.
If the offender commits a crime during the period of suspension, then the suspended sentence would
be put into operation. If the offender is found guilty of an offence, the court may impose a new sentencein addition to the suspended sentence. The suspended sentence reduces prison overcrowding andlessens detention costs.
C. Post-Sentencing StageIn terms of the Correctional Services Act, 111 of 1998, Section 81 (1) if the Minister is satisfied thatthe prison population is reaching such proportions that the safety, human dignity and physical care of
the prisoners are being affected materially, the matter must be referred to the National Council. Section
81 (2) further stipulates that the National Council may recommend the advancement of approved dates
for placement of any prisoner or group of prisoners under Community Correction and the Minister may
act accordingly
VIII. RESTORATIVE JUSTICE APPROACH
A. Background
Within the criminal justice system, criminal activities are mainly dealt with by means of a systemof retributive justice. Once convicted by a court of law, offenders are punished either by means ofimposing a period of correctional supervision, a term of imprisonment, the payment of a fine or a
combination of these punishment options.
The Department of Correctional Services has, however, decided to introduce the concept ofRestorative Justice as a key priority. This approach is based on the understanding of crime as an act
against the victim and the community. It encourages participation of the prisoner, the victim, families
and the community in addressing the concerns of the victim in an attempt to allay the need for revenge
and to combat re-offending whilst facilitating the healing process of all concerned. Restorative justiceseeks to address and balance the rights and responsibilities of victims, prisoners and communities andit advocates reparation and forgiveness.
This can be achieved through the mediation and healing process. It also aims to remedy thefundamental shortcomings in the criminal justice process. It is not aimed at replacing retributive
justice in the short term but rather at enriching the justice process.
B. Definition of Restorative Justice
There is no single definition that can embrace all of the available perspectives on the concept ofRestorative Justice, but the following definition on the subject can be very enlightening:
Within the context of Correctional Services, Restorative Justice could be described as a restorative
response to crime. It emphasizes the importance of the role of the victims, families and community
members by more actively involving them in the justice process. It is also aims at holding offenders
directly accountable to the people they have violated and at restoring the losses and harm suffered by
the victims. It provides an opportunity for mediation, dialogue, negotiation and problem solving which
could lead to healing, a greater sense of safety and enhanced offender reintegration into the community.

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C. Practising Restorative Justice
Restorative Justice can be practiced at all stages of the criminal Justice process, including the:•••

Pre-Trial Stage
Sentencing Stage andPost-Sentencing Stage

D. Processes of Restorative Justice
Restorative Justice processes can be practiced at places where it is conducive for both the victim,
the offender and the community to freely and voluntarily meet and talk about the impact and effects ofthe crime. These processes can be done at:•••

Police stations/probation offices/welfare offices
Places of detention/prisons etc.
Community safety centres/rehabilitation agencies
IX. ADVANTAGES OF COMMUNITY-BASED ALTERNATIVES

The advantages of community-based alternatives are many and varied. These advantages include:
•
•
•
•
•
•
•
•

To achieve the reformative, retributive, deterrent, and preventive aim of sentencing as a form ofpunishment;
To avoid offender stigmatization;
To reduce prison overcrowding and prevent escalation of detention costs;
To allow the offender to continue contributing towards his or her family in particular and society
instead of being confined in prison;
To avoid the risk of the break-up of the family institution as a result of a member of the family being
incarcerated;
To retain their employment and contribute to the economic mainstream of the country;
To avoid an escalation in deviant behaviour when new offenders are mixed with hardened
criminals; andTo enhance rehabilitation and reintegration of offenders into the community

Community-based alternatives offer a viable solution to both overcrowding and financial
constraints, as they are cheaper sentencing options and result in more space being made available inprison for hardened criminals who pose a real threat to the community.
X. CONCLUSION
In conclusion it can be stated that imprisonment remains the most appropriate option for offenders
who pose a real threat to the community. It can also be concluded that community-based alternatives toimprisonment should be enhanced to reduce the prison population, address problems caused byovercrowding, and promote effective rehabilitation and successful reintegration of offenders into thecommunity. The Inspecting Judge of South African Prisons, Mr. Justice JJ Fagan, in the South African
Press, 21 May, 2002 said, “It is totally unacceptable that prisons are so overcrowded. There are far too
many prisoners. Building new prisons is not the answer, Community Corrections is the way to go.” Itshould always be remembered that the community is the point of entry and the point of exit for theoffender.
Furthermore, Judge Fagan said at the Launch of the Restorative Justice Approach in November
2001, “We all know that effective rehabilitation of offenders can best be done outside prison and within
the community.” This statement clearly shows the vital role that the community can play in the
rehabilitation of offenders, which cannot be overlooked if the criminal justice system wants to achieve
its objective of developing community-based alternatives to incarceration.
The scenario sketched above, asserts that a need exists for criminal justice practitioners to search
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rate of recidivism, etc. A more reintegrative approach as opposed to the current retributive nature of
our criminal justice systems needs to be explored. It can also be said that adoption of a holistic and an
integrated approach in the search for community-based options towards the rehabilitation of theoffender should be considered. Since successful community-based alternatives demand a consultative
and a genuine partnership with the community.

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