Comment: 'Substantial and compelling circumstances': Sentencing of rapists under the mandatory minimum sentencing scheme

JurisdictionSouth Africa
Published date16 August 2019
AuthorNicole J Kubista
Citation(2005) 18 SACJ 77
Date16 August 2019
‘Substantial and compelling
circumstances’: Sentencing of rapists
under the mandatory minimum
sentencing scheme
I Introduction
Faced with the staggering level of violence against women in the form
of sexual assault and rape in South Afr ica, Parliament enacted s 51 of the
Criminal Law Amendment Act 105 of 1997 (‘the Act’). Section 51 created
legislatively predetermined sentences (‘mandatory minimums’), for
specif‌i c crimes set out in Part I of Schedule 2, including egregious forms
of rape. It further mandated that sentencing courts were to start from the
presumption that the sentence ordinarily imposed for crimes set out in
Part I of Schedule 2 rape is life imprisonment.
Initially, the Act was met with judicial opposition and confusion. In
response, the Supreme Court of Appeal held that the Act did not hamper
the ability of judges to use their discretion since the Act still allowed judges
the discretion to depart from mandatory minimums when substantial
and compelling circumstances were present.1 This appellate guidance
allowed judges to employ factors that had been relevant prior to the Act to
determine if departure from the Act’s mandatory minimum was justif‌i ed.
This practice has resulted in the misuse of the subjective severity of the
crime as a mitigating factor. By replacing legislative intent with judicial
discretion the premise of objectively measuring the gravity of each type
of crime has been undermined. What is more, the practice of justifying
departures from s 51 based on substantial and compelling circumstances
has created a rape jurisprudence that could have long-term negative effects
on sentences for rape.
2 The Criminal Law Amendment Act
The Criminal Law Amendment Act 105 of 19972 is the result of a
parliamentary policy decision to set mandatory minimum sentences for
1 S v Malgas 2001 (2) SA 1222 (SCA).
2 This Act came into effect on 1 May 1998.
(2005) 18 SACJ 77
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