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

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Author: Nicole J Kubista
• Citation: (2005) 18 SACJ 77
• Date: 16 August 2019
• Pages: 77-86

‘Substantial and compelling

circumstances’: Sentencing of rapists

under the mandatory minimum

sentencing scheme

NICOLE J KUBISTA

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

77

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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