Compensation orders in criminal proceedings

August 1st, 2018
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By John Ndlovu

The Criminal Procedure Act 51 of 1977 (the CPA), as amended, makes provision for the award of compensation to victims of crime, who have suffered damages because of the criminal conduct of an accused. The purpose of such a compensation order is to reimburse the complainant for the loss or damage they suffered without the need to institute separate civil proceedings against the accused for the recovery of such damages. In view of the aforegoing, the court will – where it finds it desirable to make a compensation order against an accused – avoid imposing an effective period of imprisonment. This approach is intended to afford the accused an opportunity to raise the money in order to pay the compensation. Furthermore, since a compensation order is intended to reimburse the complainant for the loss or damage suffered, the court will not make such an order if the accused does not have the wherewithal to satisfy it. Compensation orders are regulated by ss 297 and 300 of the Act, and this article will discuss and compare the provisions of these sections and will also show how the courts have, in practice, interpreted the provisions.

Legislation and case law

Section 300 of the CPA makes provision for an award of compensation by the court during criminal proceedings. The said section provides that where a person is convicted of an offence, which has caused damage to or loss of property (including money, belonging to some other person) the court in question may, on the application of the injured person or of the prosecutor acting on the instructions of the injured person, forthwith award the injured person compensation for such damage or loss. It is clear from this section that the court can only make an award of compensation after the accused has been convicted of the offence in question. The use of the word ‘may’ means that the court has a discretion whether to make the award or not. However, the use of the word ‘forthwith’ does not imply that the court should not properly apply its mind in exercising its discretion in terms of this section.

Furthermore, the court cannot mero motu decide to make a compensation order in terms of this section as it is the complainant’s prerogative to apply for compensation after the accused has been convicted. Where the prosecutor applies for compensation in terms of this section, it should be clear that they are acting on the instructions of the complainant. In S v King (ECG) (unreported case no CA8R: 393/2014, 11-12-2014) (Brooks AJ) the court set aside the sentence imposed by the magistrate on the accused, on the ground that it was evident from the record of proceedings that the compensation award made by the magistrate in terms of this section was made on the application of the prosecutor during his address on sentence. The prosecutor did not make it clear that in making the application he was acting on the instructions of the complainant. The court also decided that the accused must be afforded the opportunity to lead evidence or address the court on the application. In this case the accused was not given such an opportunity.

Section 300(3)(a) provides that an award made in terms of  s 300 shall have the effect of a civil judgment of the magistrate’s court. This means that the award is for all intents and purposes a judgment debt and is subject to all the principles and procedures applicable to judgment debts. Where, for instance, the accused fails to pay the compensation as ordered by the court, the complainant will be entitled to enforce compliance with the compensation order by means of a warrant of execution issued by the magistrate’s court having jurisdiction in the matter. It is, therefore, not possible to commit the accused to prison in the event of his failure to pay the compensation in terms of s 300. Furthermore, it is also permissible to pay the compensation in terms of s 300 in monthly instalments since in civil judgments payment by instalments is normal and happens very often (S v Williams (FB) (unreported case no 241/2015, 4-2-2016) (Moloi J)).

Where a compensation order in terms of s 300 becomes an option for sentencing, the court must satisfy itself as to the accused’s ability to pay the compensation. In Vaveki v S (WCC) (unreported case no A414/10, 3-12-2010) (Matthee J)) the court held that where a court has decided that it wishes to give a person the opportunity to avoid effective imprisonment by ordering a fine and/or a compensation order as an alternative or as a condition, it must endeavor to establish whether such a person is in fact in a position to pay such an amount at all and/or within the time frames stipulated. In this case the court found that the magistrate had failed to apply his mind as to whether the accused would be in a position to pay the compensation timeously or not so as to comply with the conditions of the sentence. The sentence imposed by the magistrate was accordingly set aside on appeal and replaced with a sentence which had no reference to time limits within which the accused was to pay the compensation. The judge also remarked in this case that an award for compensation under s 300 can form part of a plea and sentence agreement as provided for in terms of s 105A of the CPA (see also S v Williams (op cit)).

The complainant in whose favour the award has been made in terms of s 300 may, within 60 days after the date on which the award was made, renounce the award in writing. Where the complainant does not renounce the award as aforesaid, they will be precluded from instituting any further civil proceedings against the accused concerned in respect of the injury for which the award was made (see s 300(5)(a) and (b)). A complainant who is not satisfied with the amount of compensation awarded by the court in terms of s 300 will be entitled to renounce the award within the time period referred to so that they may be able to institute separate civil proceedings against the accused for a claim greater than the compensation awarded by the court.

A comparison of ss 297 and 300

Section 297(1)(a)(i)(aa) provides that where the court convicts a person of any offence, other than an offence in respect of which any law prescribes a minimum punishment, the court may – in its discretion – postpone the passing of sentence for a period not exceeding five years and release the person concerned on one or more conditions, which may include an award of compensation. An important distinction between the two sections is that a compensation order in terms of s 300 is made as part of the conditions of sentence, whereas a compensation order in terms of s 297 is a condition of suspension of sentence. Failure by the accused to pay the compensation in terms of s 300 will not result in his incarceration. However, where the accused fails to pay compensation in terms of s 297 they may be committed to prison. One of the differences is that s 297 does not give the complainant the right to apply for compensation. The court has a discretion whether to invoke the provisions of this section or not. Any award of compensation under s 297 does not have the effect of a civil judgment as is the case of an award made in terms of s 300. Where the amount of compensation awarded in terms of s 297 is less than the actual amount of damages suffered by the complainant, the complainant concerned will be entitled to institute separate civil proceedings against the accused for the recovery of the balance of such damages.

An award of compensation in terms of s 300 appears to be the better option than compensation under s 297. It is clear that the legislator enacted s 300 with the intention of ensuring that victims of crime are restored to the position in which they were prior to the commission of the crime. Section 300 is designed to advance the principles of restorative justice and focuses on repairing the harm occasioned by crime. The purpose of a compensation order should be restitution and not retribution.  In the case of Vaveki the court stated at para 52 of the judgment: ‘The section 300 route also is better suited to addressing the main mischief a sentencing officer is seeking to address with a compensation order, namely that the victim be compensated. If a compensation order is made in terms of section 297 and made a condition of suspension of a prison sentence, as in the present matter, and the accused cannot meet the condition timeously, by going to prison the chances of the accused ever compensating the victim become less than if the accused was kept out of prison and remained free to try and raise the money to pay the compensation awarded. The facts of the present matter clearly illustrate this.’

Conclusion

It is clear from the discussion that compensation orders in criminal proceedings are desirable as a means of repairing the harm caused by the accused’s criminal conduct. The award of a compensation order as a condition of the sentence will ensure that the accused is kept out of prison and this will in turn maximise the chances of the accused paying the compensation. Victims in criminal proceedings are often not conversant with the provisions of the CPA governing compensation orders. It is proposed that prosecutors and police officers charged with the investigation of crime should, where appropriate, draw the attention of the complainants to these provisions.

The award of compensation orders can serve as a deterrent to crime. The possibility of the accused being ordered to compensate the victim for the loss or damage suffered will ensure that the accused does not see any benefit from the commission of crime. Furthermore, the threat of being imprisoned in the event of non-compliance with a compensation order is an added factor that will encourage the accused to comply with the conditions of the sentence.

John Ndlovu BIur (Uni Zulu) LLB (UP) Masters Cert (Labour Relations Management) (UJ) is a Senior Legal Adviser at the Prosecutions Unit of the Attorneys Fidelity Fund in Centurion.  

This article was first published in De Rebus in 2018 (Aug) DR 16.

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