Case Review: Sentencing

• Jurisdiction: South Africa
• Citation: (2006) 19 SACJ 119
• Published date: 16 August 2019
• Author: Stephan Terblanche
• Date: 16 August 2019
• Pages: 119-126

Case reviews 119

Sentencing

Stephan Terblanche

University of South Africa, Pretoria

General principles

Guidance from other cases

The trend of the Supreme Court of Appeal using similar cases to establish

an appropriate sentence in a particular case was taken one step further in

S v Nyathi 2005 (2) SACR 273 (SCA) (see below, Culpable homicide). First,

the court conf‌i rmed previous judgments dealing with culpable homicide

arising from negligent or reckless driving. In S v Nxumalo 1982 (3) SA

856 (A) Corbett JA said (at 861H) that the consequences of the negligent

act should also be taken into account when imposing sentence. When

they are serious (as the death of another person would invariably be),

they would amount to an aggravating factor warranting a more severe

sentence than otherwise. The important dictum in Nyathi follows (para

15): ‘More severe yes, but how much more severe? In translating degrees

of negligence into years in custody, it is useful to have regard in a general

sort of way to sentences imposed by this and other courts.’

It then considered various sentences imposed in other cases, mostly

reported over the last 15 years. In the end the court decided that the

appellant’s negligence in the present case had been greater than in any of

the comparable cases, and that a more severe sentence was justif‌i ed.

In S v Ncheche 2005 (2) SACR 386 (W) Goldstein J (for the full bench)

did not consider any comparable sentences. In fact, he explained that he

reconsidered a previous view that the High Court was bound to follow ‘the

precedents established by the Supreme Court of Appeal’, and now thought

this view to be erroneous (para 1). He restated this ‘reconsideration’ in

para 34, as that he was not bound by the ‘sentences imposed by the

Supreme Court of Appeal’. The latter statement is, it is submitted, correct,

but the former could only be unproblematic if the judge was not careful

in distinguishing ‘precedent’ from ‘sentence’. There can be no doubt that

all courts are bound by the precedents, the guiding principles, set in the

Supreme Court of Appeal. The Supreme Court of Appeal would even

be bound by its own decisions, unless there are very good reasons for

deviating from it (cf Director of Public Prosecutions, KwaZulu-Natal v

Mekka 2003 (2) SACR 1 (SCA) para 10, conf‌i rming Contract Forwarding v

Chesterf‌i n 2003 (2) SA 253 (SCA) para 9; Ex parte Minister of Safety and

Security: In re Walters 2002 (2) SACR 105 (CC) para 60; see also Hahlo &

(2006) 19 SACJ 119

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