FROM OUR FOREIGN CORRESPONDENTS

Violent crime is rampant in South Africa. During recent years there has been a tremendous increase in the prevalence in murders, rapes, "hi-jackings", robberies, and related crimes of violence. In order to curb this escalation of crime Parliament has passed legislation inter alia providing for minimum sentences in respect of the most serious crimes. Furthermore, legislation has been enacted providing for the attachment of property in respect of which a reasonable suspicion exists that it has been acquired by the proceeds of crime.

The most important legislation dealing with minimum sentences is section 51 of the Criminal Law Amendment Act, No 105 of 1997. The exposition below deals with this provision.

Generally speaking a High Court is obliged to sentence a person convicted of certain offences to imprisonment for life. These include murder, in certain circumstances, and rape, in certain circumstances. (Robbery and certain other crimes are referred to below.)

A life sentence is mandatory for murder when it was planned or premeditated; in the case of certain victims (law enforcement officers, witnesses or likely witnesses in certain criminal proceedings); where the death of the victim was caused by the accused in pursuance or in connection with a rape or robbery with aggravating circumstances; where the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy.

A life sentence is mandatory three cases of rape. The first is when it is committed

1. in circumstances where the victim was raped more than once, whether by the accused or by any co-perpetrator or accomplice;
2. by more than one person, where such person acted in the execution of [or?] furtherance of a common purpose or conspiracy;
3. by a person who has been convicted of two more offences of rape, but has not yet been sentenced in respect of such convictions; or
4. by a person, knowing that he has acquired immune deficiency syndrome or the human immunodeficiency virus.

Thirdly, a person convicted of rape must be sentenced to life imprisonment where the rape involved the infliction of grievous bodily harm.

Apart from imprisonment for life, section 51 also provides for mandatory sentences in respect of certain other crimes. Thus, a regional court or a High Court is obliged, generally, to sentence first, second and third offenders to periods of imprisonment of not less than 15, 20 or 25 years, respectively, in respect of murder, in circumstances other than those referred to above; robbery, when there are aggravating circumstances or involving the taking of a motor vehicle (“hi-jacking”); certain offences in terms of legislation relating to drugs and drug-trafficking; any offence relating to the dealing in or smuggling of ammunition, firearms, explosives or armament, or the possession of an automatic or semi-automatic firearm, explosives or armament. Such courts are also obliged to impose these minimum periods of imprisonment in respect of certain specified offences relating to exchange control, corruption, extortion, fraud, forgery, uttering or theft.

Mandatory sentences ranging from 10 to 20 years imprisonment are also prescribed for first and subsequent offenders convicted of rape in circumstances other than those referred to above; of indecent assault on a child under the age of 16 years, if it involves the infliction of bodily harm; of assault with intent to do grievous bodily harm on a child under the age of 16 years, and certain offences under the present Arms and Ammunition Act, 75 of 1969 (soon to be replaced by another statute).

Ultimately, mandatory sentences ranging from 5 to 10 years imprisonment are also prescribed for first and subsequent offenders convicted of certain offences referred to in Schedule I (a wide range of offences) of the Criminal Procedure Act 51 of 1977, if the accused had with him or her at the time a firearm, which was intended for use as such, in the commission of such offence. (There is a proviso limiting the maximum sentence a regional court may impose in this regard.)

All the provisions referred to above are subject to a very important qualification (section 51(3)(a)), viz that, if the court is satisfied that “substantial and compelling circumstances” exist which justify the imposition of a lesser sentence than any sentence prescribed (as set out above), it must enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.

The above-mentioned qualification re-introduces judicial discretion as to sentence in particular circumstances, which are not specified by the law itself. These circumstances must be decided by the courts from case to case. In the course of the past few years the courts have decided what constitutes substantial and compelling circumstances in the particular cases before them. The most recent general formulations appear in authoritative decisions of the Supreme Court of Appeal and of the Constitutional Court, referred to below.

In The State v Dzukuda Others in 2000 the Constitutional Court avoided construing the phrase 'substantial and compelling circumstances' in section 51(3)(a). However, in The State v Malgas the Supreme Court of Appeal in March 2001 extensively considered and also summarised the proper scope of section 51. That summary can, for present purposes, be further abbreviated as follows:

A. Section 51 has "limited but not eliminated" the court's discretion in imposing sentence in respect of the specified offences.

B. These minimum sentences are those that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.

C. In the absence of truly convincing reasons for a different response the crimes in question are therefore required to elicit a severe, standardised and consistent response from the courts.

D. The specified sentences are not to be departed from lightly and for flimsy reasons.

E. Although the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, the court can still decide whether the circumstances of any particular case call for a departure from the prescribed sentence.

F. All factors (other than those set out in D above) traditionally taken into account in sentencing ........... thus continue to play a role; ..........

G. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ('substantial and compelling') and must be such as cumulatively justify a departure from the Legislature's standardised response.

H. ...........

I. The court is entitled to impose a lesser sentence where, in all the circumstances of the particular case, it is satisfied that the prescribed sentence would be unjust in that it would be disproportionate to the crime, the criminal and the needs of society.

J. ............

In order to ensure that the re-introduction of a measure of judicial discretion does not give courts free rein to bypass the provisions of section 51, there is a provision (section 51(5)) which prohibits a court imposing a sentence in terms of section 51 from invoking its general powers of suspension of part of a sentence in terms of the Criminal Procedure Act 1977.

The question whether section 51 is constitutionally invalid was raised in the Constitutional Court in The State v Dodo, decided in April 2001. The Court declined to confirm an order of invalidity made in the High Court. That court held, inter alia, that the section constituted an invasion of the domain of the judiciary by the legislature, in breach of the constitutional separation of powers embedded in the Constitution of the Republic of South Africa, 1996. The Constitutional Court disagreed, holding that the Constitution did not provide for an absolute separation between legislative, executive and judicial powers and that ' .... it is pre-eminently the function of the Legislature to determine what conduct should be criminalised and punished'.

Although section 51 has been held to be valid, it would appear that its provisions should once again be scrutinised by Parliament. It could be argued, for instance, that it is an anomaly that (generally) the minimum sentence for offences relating to possession of an automatic or semi-automatic firearm, explosives or armament is imprisonment for 15 years for a first offender (section 51(2)(a)(i), read with Part II of Schedule 2), while (generally) the minimum sentence for attempted murder is imprisonment for merely 5 years for a first offender (section 51(2)(c)(i), read with Part IV of Schedule 2). This point arose in a trial involving murder, attempted murder and certain offences relating to possession of firearms and ammunition in the High Court in Cape Town in May 2002. There may very well be other anomalies too.

May 8, 2002

Professor Andries Cilliers was the founding Dean of Law at the University of Port Elizabeth. Now retired, he lives in Stellenbosch.

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What are your views on the issues raised by this JURIST column?

• Monday September 09, 2002 at 11:17 am
  Prof. i would like to say few words on the section in question. i don't dispute the constitutionality of the section, the court have done it right. However i do dispute its application.to be short and precise, my view is that judges when they apply section 51 they must distinguish between kind of cases they are dealing with. they cannot treat all cases the same. the cases i am referring to adult and juvenile cases. the application of this section was criticised by Judge Van Zyl in Sv Nkosi( Case A727/00 unreported WLD) where a 16 year old child was sentenced life imprisonment. the section or judges should apply their minds when dealing with juveniles beacuse children though they committ serious crimes are still youth and that is suppose to help and assist them. therefore this section i view it to be unconstitutional when dealing with children the compelling circumstances in a case dealing with the juvenile, such a juvenile must be given the opportunity of rehabilitation. for taking this into account the best interests of the child will served and respected.
  
  zuko mgawuli
  student (uwc)
  south africa

• Sunday September 15, 2002 at 10:37 am
  With due response to Mr mgawuli,first and foremost you seem to have forgotten that we're still awaiting the Child justice Bill which might be passed sometime in the nearer future.However, Its object is to specifically regulate the juvenile cases.Up until such time that this Bill become enacted then would be the relevant time at which I could say your protest or contention is sensical.
  
  Mfene Jambase
  Zwide Law Firm
  SA

• Friday February 14, 2003 at 8:15 am
  Should a court pass a lesser sentence other than a prescribed minimum sentence where an accused person pleads guilty to a charge but does not show "genuine" remorse and there are no "other" substantial and compelling circumstances?
  
  Ogodiseng Isaac Monnahela
  ResearcherMafikeng High Court
  South Africa

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