Decolonising the South African Criminal Procedure: Towards a Critical Approach to the Use of Ubuntu in Sentencing
 

Author:

W Nortje

Summary:

South African Criminal Procedure has colonial roots which are yet to be fully uprooted. While several sections of the Criminal Procedure Act 51 of 1977 have been declared unconstitutional, much of it remains steeped in colonial legacies. Moreover, the minimum sentencing legislation, passed after democracy, also resembles the laws enforced by colonisers. This article challenges the colonial nature of the South African Criminal Procedure Regime and calls for its decolonisation. It proposes and endorses the use of ubuntu in sentencing proceedings to promote a culture of decolonisation. uBuntu is an African value which confronts the retributive and colonial nature of Criminal Procedure. The article builds on the current literature on decolonisation in South African law by focusing specifically on the decolonisation of Criminal Procedure and on how ubuntu can be adopted to assist in the process. While the Constitutional Court in Makwanyane 1995 3 SA 391 (CC) was praised for its interpretation of ubuntu in the abolition of the death penalty, subsequent criminal courts have been loath to apply it. The article calls on criminal courts to adopt the Makwanyane approach when determining sentencing in criminal trials.

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