R v Sillas

• Jurisdiction: South Africa
• Judge: Schreiner JA, De Beer JA, Beyers JA, Botha AJA and Smit AJA
• Judgment Date: 21 September 1959
• Citation: 1959 (4) SA 305 (A)
• Hearing Date: 14 September 1959
• Court: Appellate Division

Schreiner, J.A.:

MARAIS, J., sitting in the Witwatersrand Local Division, of his own motion reserved for the decision of this Court under sec. 366 of Act 56 of 1955 a question of law arising in the course of a criminal trial over which he presided. The accused, John

Schreiner JA

Sillas, was, together with another person to whom no further reference need be made, convicted of rape, the offence having been committed on the night of the 6th/7th March 1959. The question of law relates to the sentence which was imposed on the accused, and in particular to the A question whether he had to be sentenced under sec. 335 of Act 56 of 1955 as that section stood when the offence was committed and before the substitution effected by sec. 29 of Act 16 of 1959, or whether he had to be sentenced under the substituted section. Act 16 of 1959, which, in addition to the sub-section in question, made a number of important B amendments to the penal and procedural provisions of Act 56 of 1955, was assented to on the 23rd March 1959 and published in the Government Gazette of the 25th March 1959, but only came into force on the 1st September 1959. This was the day on which the accused was convicted; he was sentenced three days later. The amending Act was thus in operation at the time when the accused was convicted as well as at the time when he was sentenced.

C Owing to the state of his criminal record the accused would, if the old section were applicable, have to be declared an habitual criminal. (Under a well-established practice corporal punishment is not added to the sentence for an offence for which the accused is declared an D habitual criminal). If, on the other hand, the new section applied, the trial Judge could only declare him an habitual criminal if he were satisfied that he habitually committed crimes. There would even then be no obligation on the learned Judge to declare the accused an habitual criminal. Such an obligation does exist under the new section but in circumstances different from those mentioned in the old section. The E criminal record of the accused was not such as to require the learned Judge to declare him an habitual criminal if the new section applied.

Had he held that the new section applied, MARAIS, J., said that he would have imposed a sentence of six years' imprisonment with compulsory F labour and six strokes. Since, however, he considered that the old section applied he held himself bound to declare the accused an habitual criminal. The correctness of this conclusion was challenged in this Court both on behalf of the accused and on behalf of the Crown.

It is provided by sec. 38 of Act 8 of 1959 that subject to release by G the Governor-General the habitual criminal declared to be such after the 1st September 1959 is to be detained for not less than nine years. Formerly the period acted upon was one of not less than seven years but more recently the period was in practice longer. But the effect of the substitution made by sec. 29 of Act 16 of 1959 was not to alter the H severity of the indeterminate sentence itself but to alter the cases in which it might be imposed. That change would make the position worse for some convicted persons and better for others. For many of them, including the present accused, the effect was to change the powers of the trial Court to sentence him. It had the effect of changing the permissible and obligatory sentence.

The effect of an amendement increasing the severity of the permissible sentence where an accused committed an offence before the amendment came into force was dealt with by this Court in R. v.

Schreiner JA

Mazibuko, 1958 (4) SA 353 (AD). Act 9 of 1958 had by secs. 1 and 4 for the first time made it permissible to impose the death sentence for robbery, if aggravating circumstances were found to be present. The accused's offence was committed before Act 9 of 1958 came into force and A this Court held that the death sentence which had been imposed on him was not competent. In delivering the judgment of the Court. STEYN, J.A., referred to certain Roman-Dutch authorities, the conclusion being reached that in our law when an amendment increases the severity of the sentence that may be imposed an accused person whose offence was B committed before the amendment is not liable to be punished under the amendment, but is only liable to be punished up to the maximum obtaining at the time when the offence was committed. This Court in Mazibuko's case was referred to a number of decisions in the Provincial Divisions in South Africa and also to cases decided in England. Unfortunately, however, the case of Rex v Banksbaird, 1952 (4) SA 512 (AD) C , was not brought to our attention and was overlooked. In Banksbaird's case this Court had, on a question of law reserved, to consider whether the provisions of Act 33 of 1952, which for the first time required the trial Court in certain circumstances to declare the accused an habitual criminal, applied to a case in which the offence had D been committed before Act 33 of 1952 came into force. Some of the cases which were afterwards cited in R v Mazibuko were cited in argument in Rex v Banksbaird but no Roman-Dutch writers were mentioned and CENTLIVRES, C.J., in giving the Court's judgment, relied solely on the language of the new provision, which was held to be so clear as to admit E of only one conclusion, namely, that it applied to all cases in which the accused's criminal record in terms required him to be declared an habitual criminal, whether the offence had been committed before or after the coming into force of Act 33 of 1952. Similar decisions had been given in the Provincial Divisions on the provision of Act 33 of F 1952 which introduced compulsory whipping in certain cases (see Rex v Zuma, 1952 (3) SA 461 (N); Rex v Rasana, id. 589 (E); Rex v Lebetsa, id. 654 (E); Rex v Molomo and Another, 1952 (4) SA 748 (W)). A case in which an amending Act took away the pre-existing option of a fine was held on similar lines to apply to an offence committed before the Act came into force is R v Dhlamini, 1957 (3) SA 174 (N). A case in G which it was held that a provision which reduced the minimum penalty should be applied to an offence committed before the provision came into force is Rex v Loots and Another, 1951 (2) SA 132 (T).

The starting point of any discussion on the present question must be what may be called the presumption that a statute operates only on H transactions that take place after its enactment. I shall call this the presumption against retrospectivity, without examining the difference between true retrospectivity and retrospectivity in the form of interference with existing rights. The presumption against retrospectivity may be said to rest further on the presumption that the Legislature must be taken not to have intended anything unjust. (See Maxwell on Statutes, 8th ed. p. 189).

Schreiner JA

As applied to the criminal law it is clear that where a new offence is created by a statute it is only through express language or clear implication that the provision will be held to have penalised what was done before its enactment.

A In the case of a change in the penalty it might be thought that, having regard to the basic presumption, the same principle would apply where the change takes the form of an increase in the penalty. But it was possible to distinguish the new offence situation on the ground that B if there is already an offence the accused is not dealt with unjustly if the Legislature increases...