INTRODUCTION

The case of S.L v A.C ¹ concerned an application brought in the Western Cape High Court by a woman against her husband due to his default and refusal to make maintenance payments owed to her and their children. Such monthly maintenance payments were previously ordered by the Court in 2021 in terms of Rule 43.²

The Court accepted that the husband had deliberately defaulted on his payments without any satisfactory explanation and found that there was no doubt that he was in contempt of the Rule 43 order. The Court held that unless the man paid the arrears and complied with the terms of the maintenance order, he would be sentenced to 240 hours of periodical imprisonment, served over weekends, from 18:00 on Friday until 06:00 on Monday.³

THE LEGISLATION

Periodical imprisonment is a unique form of sentencing in which a prison sentence is imposed in hours rather than continuous periods. It is governed by section 285 of the Criminal Procedure Act (“the Act”)⁴. This section states:

‘A court convicting a person of any offence, other than an offence in respect of which any law prescribes a minimum punishment, may, in lieu of any other punishment, sentence such person to undergo in accordance with the laws relating to prisons, periodical imprisonment for a period of not less than one hundred hours and not more than two thousand hours.’⁵

Crimes excluded from the imposition of periodical imprisonment, namely offences for which legislation prescribes minimum sentences, include murder, rape, robbery with aggravating circumstances, and human trafficking.⁶

Although not necessary to be served on the weekends, the intermittent nature of periodical imprisonment is key.⁷ The sentence must be served in uninterrupted periods between 24 and 96 hours at a time,⁸ with due regard to the person’s employment,⁹ and a prisoner may not be held for longer periods to fast-track the sentence.¹⁰ Reasonable steps must be taken to ensure the prisoner is prevented from associating with other categories of prisoners.¹¹

IN PRACTICE

The phrase “in lieu of any punishment” in section 285 of the Act was previously interpreted to mean “as an alternative to another punishment”, particularly as an alternative to a fine.¹²

However, in the case of S v Smith; S v Nongu¹³ the Court held that the wording of section 285 of the Act implies “the substitution of one penalty for another, and not a penalty which can be imposed as an alternative to another penalty.”¹⁴ In the latter circumstances, a complete substitution does not take place. This is because periodic imprisonment, as the alternative penalty, is only effective if the fine, as the main sentence, is not served. Thus, in this instance, the accused is given a choice, which was not contemplated in the section. Instead, the section contemplates the court having a choice in imposing the sentence.¹⁵

Furthermore, the Court noted that section 287, which governs the imposition of a fine, refers to imprisonment but not periodical imprisonment. Thus, it was not the intention of the legislature that periodical imprisonment is imposed as an alternative to a fine.¹⁶

Also, a sentence in suspended form cannot be added to a sentence of periodical imprisonment.¹⁷ This should be differentiated from suspending the sentence on condition, such as upon payment of maintenance amounts owed, as in the case of S.L v A.C above.

Periodic imprisonment is beneficial in many respects. First introduced in our law in 1959, it has been praised for its balanced approach to punishment and the disruption of an accused’s family life.¹⁸ It seems to be designed for persons in regular employment,¹⁹ and so is especially useful in instances where it is necessary for the accused to earn a salary, but where punitive punishment is still required, such as a violation of a maintenance order in divorce instances, or in cases of drunken driving.²⁰

Furthermore, it has been noted that the offender is not exposed to the often-destructive environment of a correctional centre. Weekend-type offences, such as those which involve liquor, can be avoided.²¹ Ultimately, it is beneficial to both accused and the community, due to its preservation of the accused’s family life, as well as is considered less degrading than ordinary imprisonment.²²

However, periodical imprisonment should not be considered a lesser or lighter form of punishment. As noted by Judge R Hiemstra, “it is miserably inconvenient and reminds the offender of his transgression over a longer period of time.”²³ Therefore, it remains effective for determent and retributive justice purposes.

A possible disadvantage is the administrative burden placed on the correctional service due to the admission and release process that the accused must undergo every time that the portion of the sentence is served.²⁴

CONCLUSION

Although periodical imprisonment has become less common over time, it remains a unique and valuable sentencing mechanism that allows courts to impose meaningful punishment while still preserving an offender’s ability to work and support their family.