Case Review: Sentencing

• Jurisdiction: South Africa
• Date: 16 August 2019
• Published date: 16 August 2019
• Author: Stephan Terblanche
• Pages: 385-400

Case reviews 385

Sentencing

Stephan Terblanche

University of South Africa, Pretoria

General principles

Guidance from other cases

There appears to be a clear increase in the number of dicta from the

Supreme Court of Appeal regarding the value that can be derived from

sentences imposed in previous cases. Such cases have been discussed in

a number of previous editions of this feature (see (2005) 18 SACJ 109;

(2004) 17 SACJ 268, 269; (2003) 16 SACJ 437). The latest dictum is as clear

as any preceding judgment. Conradie JA declared in S v Xaba 2005 (1)

SACR 435 (SCA) para 15:

‘It is next necessary and instructive to make a rough comparison between these

sentences and those that other Courts have found appropriate. It has often been

pointed out that no two cases are alike and this is self-evidently true, but the fact

remains that courts must strive for some consistency in punishment and where

a sentence is extravagantly high an appeal Court becomes entitled to interfere

with it.’

(See also below How to determine the length or severity of a

sentence.)

The right to equal treatment before the law has not really received much

attention in our sentencing law. However, dicta such as the one quoted

above might well represent a tacit recognition of the importance of this

right within the context of sentencing. This interpretation is strengthened

by the fact that the Supreme Court of Appeal itself has not stressed the

importance of each case being judged on its own facts for a considerable

time now. I argued elsewhere that equality and consistency must be where

the focus in sentencing should be located (cf The Guide to Sentencing in

South Africa (1999) 143-145).

How to determine the length or severity of a sentence

In keeping with the sentiments expressed in the previous section, the

court in S v Xaba 2005 (1) SACR 435 (SCA) is also the f‌i rst to make

mention of the process of ‘translating the guilt of an accused’ into years

in prison. In order to do this, the court declared, sentencing courts must

be aware of the sentences considered ‘socially appropriate or desirable’ in

other cases (para 11):

(2005) 18 SACJ 385

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386 SACJ • (2005) 3

‘How many years’ incarceration a particular [drug] offence will bring an accused

is something that has to be determined be a general and necessarily rough

comparison of what the presiding off‌i cer has in mind with the sort of sentence

that courts are at the time imposing for that kind of offence and the penalties

prescribed by the lawgiver. He or she then makes the adjustments required by

the special circumstances of the case, most prominent of which are the special

circumstances of the accused: his record, his contrition and that kind of thing’.

It is possible to debate the use of the phrase ‘guilt of an accused’, since

the word guilt has a specif‌i c technical meaning within the criminal law.

It might be preferable to refer to the accused’s blameworthiness, or

something similar entailing more than mere guilt. Why this is so is evident

from the facts of the present case (see below Drug offences) is that the

value of the drugs plays an important role in determining the seriousness

of the offence, but its value has little to do with the offender’s guilt as

such. However, as an expression of the process involved in determining

a particular sentence, this dictum is to be welcomed. It is hoped that the

court will f‌i nd a way of expanding on it in the near future.

The role of previous convictions

Another offender was given a sentence out of all proportion to the

seriousness of his crime, because of his previous convictions, in S v

Matlotlo 2004 (2) SACR 549 (T). He was convicted, on his plea of guilty, for

shoplifting an item worth R50. However, due to his f‌i ve similar previous

convictions the trial magistrate sentenced him to three years’ imprisonment.

On review Bosielo J stated that this criminal record clearly showed that

M was a kleptomaniac who needed a suitable rehabilitative programme

to help him overcome the problem (at 550). As a result the sentence

was partly suspended (see below Conditions of suspension for more

detail). Unfortunately, the sentence remained three years’ imprisonment.

It is submitted that a term of three years’ imprisonment will always be

disproportionate for theft of an item worth only R50. It makes no difference

that half of the sentence is suspended. It has repeatedly been stressed in

our courts that the softening effect of the suspension of a sentence (cf

S v Setnoboko 1981 (3) SA 553 (O) at 557; S v Shangase 1972 (2) SA 419

(N) at 428) does not permit a sentence out of all proportion to the crime

(cf S v Slabbert 1998 (1) SACR 646 (SCA) at 647; S v Oosthuizen 1995 (1)

SACR 371 (T) at 374; S v Ndaba 1993 (2) SACR 633 (A) at 638). At most a

sentence on the heavy side of the spectrum of appropriate sentences is

permitted (cf S v Setnoboko 1981 (3) SA 553 (O) at 558). This is the case

as the suspended sentence may be put into operation, and it will be unfair

if the offender is punished beyond what is deserved. The offender will also

be fully punished for the subsequent offence, further exacerbating the

unfairness if the f‌i rst sentence is too severe (cf S v Sibeko 1995 (1) SACR

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