Aspects of minimum sentence legislation: Judicial comment and the courts' jurisdiction

• Jurisdiction: South Africa
• Author: Stephan Terblanche
• Published date: 24 May 2019
• Citation: (2001) 14 SACJ 1
• Date: 24 May 2019
• Pages: 1-19

ARTICLE • ARTIKELS

Aspects of minimum sentence

legislation: judicial comment

and the courts' jurisdiction

STEPHAN TERBLANCHE*

Introduction

Few pieces of legislation affecting the criminal justice system have lately

received as much judicial comment as ss 51 to 53 of the Criminal Law

Amendment Act, 1997.

1

It is assumed that most readers are aware of the basic

content of this legislation. It contains mandatory and minimum sentences

2

for

most of the more serious crimes,

3

provides an escape clause when

'substantial and compelling circumstances' are present,

4

and has been

intended as a temporary measure

s

, mainly to alleviate the serious crime

*



B lur (PU vir CHE) LLD (SA),

Professor of Law in the Department of Criminal and Procedural

Law, University of South Africa.

1



Act 105 of 1997 — hereafter referred to as the Act'.

2



According to Davis J in

S v Jansen

1999 (2) SACR 368 (C) at 374f the Act does not create a

system of minimum sentencing

per se,

because of the escape clause; see also

S v Blaauw

1999

(2) SACR 295 (W) at 302i. However, there is little doubt that the minimum (or mandatory)

sentences prescribed in the Act provide the point of departure—the escape clause would

generally be employed in isolated instances only. It is submitted that, even if exceptions are

allowed, this is clearly a mandatory and minimum sentencing system.

3

It applies to offences committed after the date on which the Act came into operation (see n 5

below) —

S v Willemse

1999 (1) SACR 450 (C) (no clear indication of retroactive operation in

the Act). For more detail on the offences involved, see n 55 and 59 below.

4

See s 51(3)(a) and n 50 below.

5

The relevant sections were brought into operation by Proclamation R43 dated 1 May 1998. It

was initially intended to expire after 2 years (s 53(1)), but its operation was extended for

another year

by Prodamation R23 dated 28 April 2000, as provided for in s 53(2). It will

probably be extended again with effect from 1 May 2001. Section 53(2) has been amended by

the Judidal Matters Amendment Act 62 of 2000 (which has not come into operation at the time

of writing), to permit the President to extend the provisions for 2 years at a time.

1

(2001) 14 SACJ 1

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2



SACJ •

(2001) 14 •

SAS

problem in South Africa.

6

The sentences that have be imposed for many of

the offences have been increased quite dramatically.

7

The escape clause has taken up most of our courts' time. A substantial

amount of jurisprudence has, therefore, developed on the meaning of

'substantial and compelling circumstances'. This jurisprudence justifies an

article by itself. The present article will, therefore, be restricted to a discussion

of other aspects of the legislation that have drawn judicial comment.

General judicial comment

Mandatory and minimum sentences

8

are not new or unfamiliar phenomena

in the South African criminal justice system. Nor has either ever been

accepted without displeasure from our judiciary. The Act is no different.

9

The

courts' basic objection against such sentences is that they reduce the courts to

6

See 3 below for a discussion of the purpose(s) of this legislation.

Cf

S v Blaauw

1999 (2) SACR 295 (W) at 311i.

8

Our courts have generally not distinguished mandatory from minimum sentences, and it is

not uncommon to find them referring to 'mandatory minimum' sentences— cf

S v Gibson

1974 (4) SA 478 (A) at 482A;

S v Toms

1990 (2) SA 802 (A) at 822C (Corbett CJ);

S v Likuwa

1999 (2) SACR 44 (Nm) at 47;

S v Montgomery

2000 (2) SACR 318 (N) at 324. The main

reason for distinguishing mandatory and minimum sentences is that the former can be totally

suspended, whereas the latter cannot — s 297(4) of the Criminal Procedure Act 51 of 1977;

S

v Toms

1990 (2) SA 802 (A) at 828I-829G, 831H-J; see also SS Terblanche

The Guide to

Sentencing in South Africa

(1999) 63, 66. However, this distinction has no real significance

with respect to the Act, since s 51(5) specifically prohibits any suspension of the prescribed

sentences—see also

S v Homareda

1999 (2) SACR 319 (W) at 321d. Logically speaking,

however, the Act contains both mandatory and minimum sentences: the prescribed life

imprisonment in Part I of Schedule 2 does not allow for more than the minimum to be

imposed and, therefore, has to be seen as mandatory (cf the difference of opinion in

S v

Toms

1990 (2) SA 802 (A) 828I-829G, 831H-J in this regard). However, this is not the kind of

mandatory sentence referred to in

S v Toms

1990 (2) SA 802 (A) at 806J if as a 'sentence

prescribed by the Legislature which leaves the court with no discretion at all— either in

respect of the kind of sentence to be imposed or, in the case of imprisonment, the period

thereof.'

9

Cf

S v Mofokeng

1999 (1) SACR 502 (W) at 525g (legislation unjust) and also: '...I find my

conscience and my sense of justice to have been challenged by the provisions of [the Act]';

S v

Budaza

1999 (2) SACR 491 (E) at 506 ('...I might well have been constrained to condude that

to implement the provisions of s 51 of the Act would be in conflict with my oath of office');

S v

Montgomery

2000 (2) SACR 318 (N) at 322f-g (most judges regard section 51 as

'disconcerting'). In contrast, and while acknowledging that the courts do not like mandatory

sentences,

S v Boer

2000 (2) SACR 114 (NC) at 121a ff appears to justify the provisions of the

Act (our country is plagued by serious crime, the legislature has been placed under increased

pressure by sodety to deal with this problem; it has temporarily prescribed drastic measures

that will be taken away when the situation is normalised; abnormal times require abnormal

measures to ensure the protection of democracy and the freedom of individuals).

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