criminals have dignity too
09 January 2008

A Port Elizabeth magistrates' order that a woman with 203 previous convictions of fraud and one of theft, be publicly shamed with a placard around her neck proclaiming her guilt and apologising to her victims, has been set aside by the Grahamstown High Court as unconstitutional.

In an unusual move, two senior judges requested that this condition of the suspended sentence imposed on Antoinette Saayman, 45, of Port Elizabeth, be argued before them on review by the State, and advocates instructed by the Grahamstown Legal Resources Centre.

Judges Jeremy Pickering and Jean Nepgen found that even though such "a seemingly incorrigible recidivist" as Saayman, the public humiliation of the offender violated her Constitutional rights to "inherent dignity and to have that right respected and protected."

Their decision is binding on all courts in the Eastern Cape, and a legal source said "it would be persuasive in other jurisdictions and would open the debate on the principles of restorative justice."  Magistrate Kenny Cooney sentenced Saayman to two years in prison, suspended for five years on condition that she serve 18 months correctional supervision and perform 16 hours of community service at a local police station.

He also ordered that Saayman be made to stand in the foyer of the city's Commercial Crimes Court for 15 minutes, under the supervision of a police officer, with a placard around her neck, in Afrikaans, proclaiming her guilt and asking for forgiveness from her victims.

Cooney also ordered Saayman to attend courses in life skills, relationship building, psychotherapy and to repay R500 a month to Telkom.

Saayman appealed against this condition of her suspension, but Cooney refused leave to appeal.  Then, for reasons that are unclear, Saayman, who is currently incarcerated in prison on an unrelated fraud charge, instructed her attorneys to withdraw the appeal.

Judges Pickering and Nepgen, concerned at the condition of the suspended sentence, then instructed the matter to be brought before them.

In a written 16-page judicial decision, both judges concurred that the public humiliation of the offender, as envisaged by the magistrate was unconstitutional, and further, "that the sentencing of offenders must conform to common standards of decency recognised throughout the civilised world."

Citing section 12 (1)(e) of the Constitution, Pickering wrote: "Everyone has the right to freedom and security of person, which includes the right not to be treated or punished in a cruel, inhuman or degrading way." "Respect for human dignity is one such value; acknowledging it includes an acceptance by society that even the vilest criminal remains a human being possessed of common human dignity," said Pickering.

Setting aside the condition imposed by Cooney, both the judges were of the view that the remaining portion of the sentence was "a laudable attempt by the magistrate" to keep Saayman out of prison and apply the principle of restorative and rehabilitative justice.

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