Mandatory and minimum sentences: Considering s 51 of the Criminal Law Amendment Act 1997

• Jurisdiction: South Africa
• Citation: 2003 Acta Juridica 194
• Author: S S Terblanche
• Pages: 194-220
• Date: 15 August 2019
• Published date: 15 August 2019

Part C

SENTENCING

Mandatory and minimum sentences:

Considering s 51 of the Criminal Law

Amendment Act 1997

S S TERBLANCHE*

University of South Africa

I INTRODUCTION

The President’s signature brought ss 51 to 53 of the 1997 Criminal Law

Amendment Act

1

into operation on 1 May 1998.

2

By specifying certain

conditions to certain crimes, attended by specif‌ic terms of imprisonment,

these provisions brought quite a drastic adjustment to the way in which

the courts determine sentences that are to be imposed for these offences.

Initially, the Act was intended to be a short-term measure that would

have ‘ceased to have effect’ on 30 April 2000.

3

However, the President

extended its operation according to powers afforded him,

4

f‌irst for one

year and then for a further two years.

5

On 30 April 2003 when it ceased to

have effect, its operation was extended for another period of two years.

In this chapter I attempt to consider the f‌iner details of s 51, including

those not yet interpreted by the courts. In order to do so the intention of

*LLD (Unisa), Professor of Law, Department of Criminal and Procedural Law,University

of South Africa.

1

Act 105 of 1997, as amended – hereafter referred to as ‘the Act’. A substantial amendment

was brought about by the Judicial Matters Amendment Act 62 of 2000, mostly in order to clear

up uncertainties of a procedural nature – P Stassen ‘New legislation’ (2002) De Rebus 51 at 54.

2

Proc R43 GG 6175 of 1 May 1998. It did not apply retroactively (S v Willemse 1999 (1)

SACR 450 (C), S v Hlongwane 2000(2) SACR 681 (W) at 682i) and only offences committed

from 1 May 1998 onwards could be sentenced in terms of its provisions. Regarding the

legislative process, see D van Zyl Smit ‘Mandatory sentences: A conundrum for the new South

Africa’ in C Tataand N Hutton (eds) Sentencing and society: International perspectives (2002) 90 at

98ff.

3

In terms of s 53(1).

4

In terms of s 53(2).

5

Proc R2 GG 22261 of 30 April 2001 and again in Proc R40 GG 24804 of 30 April 2003.

194

2003 Acta Juridica 194

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the legislature and the courts’approach in interpreting the provisions have

to be considered as well. In closing, a brief attempt is made to evaluate the

Act.

II INTERPRETING THE ACT

(1) The intention of the legislature

In interpreting legislation it is important to determine the legislature’s

intention. A variety of reasons for the passing of the Act have been advanced,

but there is little doubt that deterrence is its principal aim.

6

It is the same the

world over: politicians believe that the prescription of quite severe,

mandatory sentences will deter potential offenders from committing crime.

7

A few other purposes of the legislation, although always secondary to

the main object of deterrence, have also been advanced, but, in some

instances, these purposes are clearly erroneously identif‌ied.

8

(2) Criticism of the language of the Act

The poor draftsmanship of the Act has repeatedly been referred to and

criticised by the courts.

9

Much of this criticism has been aimed at the procedural provisions in

s 52, which have subsequently been amended.

10

Nevertheless, funda-

mental diff‌iculties remain, and many further diff‌iculties are going to

present themselves as the courts start delving into the details of the

offences contained in Schedule 2.

11

6

Cf S v Mofokeng 1999 (1) SACR 502 (W) at 526; S v Willemse (n 2) 454; S v Homareda

1999 (2) SACR 319 (W) at 325; S v Khanjwayo; S v Mihlali 1999 (2) SACR 651 (O) at 658;

S v Boer 2000(2) SACR 114 (NC) at 122; S v Eadie 2001(1) SACR 185 (C) at 187; S v Kgafela

2001 (2) SACR 207 (B) para 23; S v Arias 2002(1) SACR 518 (W).

7

Cf M Tonry Sentencing matters (1996) 159–61.

8

For example, to avoid disparities (S v Majalefa (WLD) 22 Oct 1998, unreported,

S v Montgomery 2000 (2) SACR 318 (N) at 322) and retribution (S v Snyders 2000 (2) SACR

125 (NC) at 129). However, as pointed out in S v Zitha 1999 (2) SACR 404 (W) at 409 and

S v Blaauw 1999 (2) SACR295 (W) at 303, avoidance of disparity is not a likely object, due to

the temporary nature of the Act and the emphasis on aggravating features. Also, retribution

demands appropriate sentencing in proportion to the seriousness of the crime, whereas many of

these provisions are strikingly disproportionate.

9

S v Ibrahim 1999(1) SACR 106 (C) at 114 (‘appallingly bad manner in which the sections

have been drafted’); S v Jansen 1999 (2) SACR 368 (C) at 371–2 (referring to uncertainty

prevailing in all the courts as a result of poor drafting); S v Mangesi 1999 (2) SACR 570 (E) at

583; S v Snyders (n 8) 132; S v Olkers 2002 (1) SACR 179 (C) at 182–3; S v Swartz;

S v Longane 2002 (1) SACR591 (NC) at 593e(‘onelegante en ondeurdagte stuk wetgewing’);

S v Sukwazi 2002 (1) SACR 619 (N) at 623g-h(‘ill-conceived and badly drafted’); S v Jimenex

2002 (2) SACR 190 (W) at 192 (‘. . . unhappily drafted legislation . . .’); S v Nkosi 2002 (1)

SACR 135 (W) at 142c(‘. . . peculiar wording’of s 51(3)(b)).

10

Judicial Matters Amendment Act (n 1).

11

Much of the contents of Schedule 2 to Act 105 of 1997 can also be found in Schedules 5

and 6 to the Criminal Procedure Act 51 of 1977, which are mostly relevant to bail applications.

Guidance in interpretation of one set of these schedules should be useful for the other as well.

195MANDATORY AND MINIMUM SENTENCES

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