South African courts have to deal with the sentencing of convicted accused on a daily basis. While presiding officers are well-trained and experienced in sentencing matters, it seems that compensation orders are not generally invoked as a form of punishment. This article discusses the compensation penalty as a possible punishment means that could be used in our courts. It could be one of the factors that may help to reduce an accused’s prison sentence and also to compensate the victim who has suffered damage resulting from the criminal activity.
The accused’s constitutional right to a fair trial provides that the lightest possible punishment should be imposed upon him. If a compensation fine is indeed a more lenient sentence, it should then be imposed. The actual sentence rests solely on the discretion of the presiding officer. There are various sentencing options available to the presiding officer of which life imprisonment is the heaviest, and a fine the most lenient. A fine is a form of punishment which requires the accused to pay an amount of money to the state. A compensation order on the other hand is a sentencing option that requires the accused to pay a monetary amount, as determined by the court, to the victim. Notably, the court will not grant such an order if the accused does not have the financial means to pay the compensation. Compensation orders may take various forms and are not limited to monetary amounts. Compensation orders are regulated in terms of sections 297 and 300 of the Criminal Procedure Act 51 of 1977. Compensation orders in criminal proceedings in South African courts are rather the exception than the rule. Although it is included in sections 297 and 300, it is not regularly applied by our courts. It may be that some courts are unaware of these types of sentences or that the focus is more geared towards the accused and on the interest of the broader community, as opposed to the victims. Consequently, victims in criminal proceedings are more often than not placed in a disadvantaged position as their requests for compensation are frequently disregarded by courts. Apart from the specific provisions of the Criminal Procedure Act dealing with such compensation orders, this discussion also deals with some court decisions where it was placed under the spotlight.