S v Dodo

• Jurisdiction: South Africa
• Judge: Chaskalson P, Goldstone J, Ackermann J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ and Somyalo AJ
• Judgment Date: 05 April 2001
• Docket Number: CCT 1/2001
• Hearing Date: 22 March 2001
• Counsel: J W Eksteen SC (with him B L Boswell) for the applicant (at the request of the Court). J A van S d'Oliveira SC (with him J Engelbrecht and T Matzke) for the State.
• Court: Constitutional Court

Ackermann J: A

Introduction

[1] This case concerns the constitutional validity of the provisions of s 51(1) of the Criminal Law Amendment Act 105 of 1997 (the Act). This section in effect makes it obligatory for a High Court to sentence an accused, convicted of offences specified in the Act, to imprisonment B for life unless, under s 51(3)(a), the Court is satisfied that 'substantial and compelling circumstances' exist which justify the imposition of a lesser sentence.

[2] The Eastern Cape High Court (the High Court) declared the section C in question to be constitutionally invalid, because it was inconsistent with s 35(3)(c) of the Constitution, which guarantees to every accused person 'a public trial before an ordinary court' and was also inconsistent with the separation of powers required by the Constitution. This order serves before this Court for confirmation under the provisions of s 172(2) of the Constitution. The D applicant, who had been convicted in the High Court of murder, under circumstances which made the provisions of s 51(1) of the Act applicable to him, supports confirmation. The State, through the office of the National Director of Public Prosecutions, opposes confirmation. E

[3] Section 51(1) of the Act provides that

'(n)otwithstanding any other law but subject to ss (3) and (6), a High Court shall, if it has convicted a person of an offence referred to in Part I of Schedule 2, sentence the person to imprisonment for life'.

Subsection (3)(a) provides that F

'(i)f any court referred to in ss (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence'.

Under ss (5) the operation of a sentence imposed in terms of the section may not be suspended as contemplated in s 297(4) of the G Criminal Procedure Act 51 of 1977 (the CPA). Subsections (3)(b) and (6) are not presently relevant. One of the offences referred to in Part I of Schedule 2 to the Act is:

'Murder, when - H

(a)

it was planned or premeditated;

(b)

the victim was -

(i)

a law enforcement officer performing his or her functions as such, whether on duty or not; or

(ii)

a person who has given or was likely to give material evidence with reference to any offence referred to in Schedule 1 to the Criminal Procedure Act 51 of 1977 at criminal proceedings in any court; I

(c)

the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit one of the following offences:

(i)

rape; or

(ii)

robbery with aggravating circumstances; or J

Ackermann J

(d)

the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common A purpose or conspiracy.'

The High Court judgment

[4] Smuts AJ, in the course of his careful judgment in the High Court, came to the conclusion that he was obliged to consider the constitutionality of s 51(1) because B

4.1

the offence of murder, being one of the offences of which he had convicted the applicant, had been committed under circumstances which brought it within the provisions of Part I of Schedule 2, namely murder committed [*] under the circumstances detailed in para (c)(i) thereof; C

4.2

if he were not bound by the provisions of s 51(1) he would have imposed a sentence other than life imprisonment;

4.3

on his construction of the phrase 'substantial and compelling circumstances' (at 310g - h)

'the discretion to depart from the imposition of a mandatory life sentence arises when such sentence would occasion a D shocking injustice . . . would be ''grossly disproportionate'' to the crime committed or ''startlingly inappropriate'' or the Court forms the view that such sentence is ''offensive to its sense of justice'' . . . or when such sentence is ''disturbingly inappropriate'' '

(citations omitted); E

4.4

if he were bound by the provisions he 'would be obliged to impose a sentence of life imprisonment', it being implicit in the phrase quoted, and expressly stated elsewhere in the judgment that he did not consider the circumstances relating to the murder count on which the applicant had been convicted to be 'substantial and compelling' so as, on his construction of s 51(3)(a), to warrant the imposition of a lesser punishment. F

[5] The finding referred to in para 4.1 above was not challenged or questioned in this Court and for purposes of the present judgment it must be accepted as correct. There is a close link between the Judge a quo's reasons for finding that the section is inconsistent with the constitutional separation of powers and his G finding that it constitutes an unjustifiable limitation of s 35(3)(c) of the Constitution.

[6] Dealing with the latter provision of the Constitution he observed, in the course of his judgment, that '(s)entencing is pre-eminently the prerogative of the courts', that the section of the Act in question 'constitutes an invasion of the domain of the H Judiciary not by the Executive, but by the Legislature', and that a criminal trial before an ordinary court requires, among other things, 'an independent court which is empowered . . . in the event of a conviction, to weigh and balance all factors relevant to the crime, the accused and the interests of society before the imposition of I sentence'. What was new about the 'trial envisaged by s 51(1) of the Act', Smuts AJ held, is that 'an accused convicted of a serious charge before the High Court, unless the Court is J

Ackermann J

satisfied that substantial and compelling circumstances exist which justify the A imposition of a lesser sentence, faces a life sentence which was decided upon before the commencement of the trial, not by the Court itself, but by the Legislature'. This, the learned Judge further found, in truth directs the High Court 'to consider principles more relevant to the functions of a Court of appeal when dealing with the issue of sentence'. He concluded that this B

'. . . is not a trial before an ordinary court . . . [but] . . . a trial before a court in which, at the imposition of the prescribed sentence, the robes are the robes of the Judge, but the voice is the voice of the Legislature'.

The Judge consequently found that '(s)uch a trial . . . constitutes a limitation of . . . (t)he fair trial envisaged in C s 35(3)(c) of the Constitution' which could not be justified under s 36 thereof.

[7] In dealing with the separation of powers, the High Court reviewed the major judgments of this Court on the issue and referred to the First Certification Judgment [1] and D the judgments in Bernstein, [2] De Lange v Smuts, [3] and Heath, [4] relying upon the following passages from the last-mentioned case:

'[23] (T)here is a clear though not absolute separation between the Legislature and the Executive on the one hand, and the courts on the other . . . . E

. . .

[25] . . . Parliament and the provincial legislatures make the laws but do not implement them. The national and provincial executives prepare and initiate laws to be placed before the legislatures, implement the laws thus made, but have no law-making power other than that vested in them by the legislatures. . . . Under our F Constitution it is the duty of the courts to ensure that the limits to the exercise of public power are not transgressed. Crucial to the discharge of this duty is that the courts be and be seen to be independent.

[26] The separation required by the Constitution between the Legislature and Executive on the one hand, and the courts on the other, must be upheld otherwise the role of the courts as an independent G arbiter of issues involving the division of powers between the various spheres of government, and the legality of legislative and executive action measured against the Bill of Rights, and other provisions of the Constitution, will be undermined. The Constitution recognises this and imposes a positive obligation on the State to ensure that this is done. It provides that courts are independent and subject only to the Constitution and the law which they must apply impartially without H fear, favour or prejudice. No organ of State or other person may interfere with the functioning of the courts,

Ackermann J

and all organs of State, through legislative and other measures, must assist A and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness.'

(Footnotes omitted.)

[8] The High Court's reasons for coming to the conclusion that the provisions of s 51(1) of the Act 'undermine the doctrine of separation of powers and the independence of the Judiciary' and are B inconsistent therewith are summarised in the judgment, borrowing the terminology used in De Lange v Smuts, [5] as follows (at 319g - i):

'A sentence of imprisonment for life, irrespective of the policies and procedures to which such sentence may be subjected by the Department of Correctional Services, must be regarded by the Court C imposing it as having the potential consequence, at the very least, that the accused so sentenced will indeed be incarcerated until his death. It is an extreme sentence. It is the most severe sentence which may lawfully be imposed on an accused such as the one now before Court. It is a sentence which, in the ordinary course, requires a meticulous weighing of all relevant factors before a decision to impose it can be D justified. . . . (W)hatever the boundaries of separation of powers are eventually determined to be, the imposition of the most severe penalty open to the High Court must fall within the exclusive...