Case Review: Sentencing

• Jurisdiction: South Africa
• Date: 24 May 2019
• Published date: 24 May 2019
• Pages: 127-139
• Author: Stephan Terblanche
• Citation: (2009) 22 SACJ 127

Sentencing

Stephan Terblanche

Sentencing procedures and general principles

Young offenders

The facts of S vN2008 (2) SACR 135 (SCA) are recounted below (see

Rape). The majority judgment, by Cameron JA, confirmed the constitu-

tional principle that imprisonment should not be imposed on a child

except as a last resort. This principle does not only apply to the question

whether imprisonment should be imposed or not (para [39]):

‘So if there is a legitimate option other than prison, we must choose it; but if

prison is unavoidable its form and duration should also be tempered. Every

day he spends in prison should be because there is no alternative.’

The court replaced the sentence of six years’ imprisonment with five

years’ imprisonment in terms of s 276(1)(i) of the Criminal Procedure

Act. ‘‘Is this too soft?’’ Cameron JA wonders (para [44]), and then

answers:

‘I cannot say no with any assurance. But I am less unsure that it may be too

soft than I am sure than an undifferentiated sentence of direct imprisonment is

too harsh. And if we are to risk erring at all, the Constitution requires us to err

by recognising the possibility of promise that may still flower from his youth,

rather than fixing on the destruction that was immanent in his crime.’

Previous convictions

In S v Ntozini 2009 (1) SACR 42 (E) the accused was convicted of rape.

He had various previous convictions, dating from 1975 to 1986. Four of

these previous convictions were for assault and resulted in the imposi-

tion of small fines. However, he had also been convicted of rape in 1980

and sentenced to two years’ imprisonment. The defence argued that

these previous convictions should no longer be held against N, but Pick-

ering J responded that ‘it is nevertheless in my view an aggravating fea-

ture indicative of the accused’s deplorable attitude towards members of

the opposite sex’ (49b). It is not possible to say from the judgment how

much this ‘aggravating feature’ added to the punishment, if at all (see

below Rape).

Informally, our sentencing law acknowledges that previous convictions

Sentencing 127

(2009) 22 SACJ 127

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