Recent Case: Sentencing

• Citation: (2023) 36 SACJ 510
• DOI: https://doi.org/10.47348/SACJ/v36/i3a9
• Published date: 13 March 2024
• Pages: 510-527
• Author: Terblanche, S.
• Date: 13 March 2024

Sentencing

STEPHAN TERBLANCHE

University of KwaZulu-Natal

General principles of sentencing

Proof of previous convictions

Section 271 of the Criminal Procedure Act 51 of 1977 (CPA) is

summarised as follows in S v Bekker 2023 (1) SACR 307 (GP) at para

[11]:

‘In terms of s 271 of the Criminal Procedure Act 51 of 1977, the prosecution

may, after an accused has been convicted but before sentence has been

imposed upon him, produce to the court for admission or denial by the

accused a record of previous convictions alleged against the accused.’

Several judgments have concluded that s 271 gives the discretion to

prove previous convictions to the prosecutor (e g, S v Smith 2002 (2)

SACR 488 (C); S v Sethokgoe 1990 (2) SACR 544 (T); S v Miya 1996 (1)

SACR 449 (N)). Many of these judgments took this conclusion further

and found that it would be irregular for the court to interfere with

this discretion (cf S v Khambule 1991 (2) SACR 277 (W) at 283b-c; S v

Delport 1995 (2) SACR 496 (C) at 500e ff). Put another way (A Kruger

Hiemstra’s Criminal Procedure (SI 16, 2019) 271: 27-1:

‘It is … improper for the presiding ofcer to question the accused in order

to determine previous convictions (S v Khambule1991 (2)SACR277(W)

at 283) or to question the accused about previous convictions which do

not appear on the SAP 69 form (S v Delport1995 (2) SACR496 (C); S v

Njikaza2002(2)SACR481(C) at 484a–b)’.

Clearly, these judgments have taken a narrow view of s 271, and there

has been considerable criticism of such interpretation. Generally, this

criticism is that these judgment s disregard the following considerations

which should also play a role in determining the proper legal position:

1. After conviction, s 274 of the Criminal Procedure Act gives the

sentencing court a central role in determining facts relevant to an

appropriate sentence.

2. It is very important, for the purpose of determining an appropriate

sentence, whether the offender is a rst offender, or has previous

convictions.

3. The use of ‘may’ in s 271 could be inter preted as merely ‘permissive’,

which would not necessarily exclude the presiding ofcer from

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involvement in determining whether there are previous convictions

or not.

Based on these considerations, this author has concluded that judgments

such as Khambule have been incorrectly decided (SS Terblanche

A Guide to Sentencing in South Africa 3ed (2016) 113).

For similar reasons, the court in S v Nhlapo 2012 (2) SACR 358 (GSJ)

found itself unable to agree with these judgments in a case where

the prosecutor adopted a passive attitude and decided not to prove

previous convictions as there was no SAP69 in the docket. Nhlapo

involved robbery with aggravating circumstances and was subject to

a minimum sentence in terms of the Criminal Law Amendment Act

105 of 1997 (CLAA). In a separate judgment, Spilg J concluded that

‘the permissive nature of s 271 of the CPA must now yield to ensure

that the peremptory provisions of s 51 of the CLAA, which is the more

recent enactment, are implemented as intended’ (at para [27]). This

judgment is discussed in some detail in E Du Toit et al Commentary on

the Criminal Procedure Act (RS 71, 2023) 27-6A, with the conclusion

that it should not be ‘interpreted narrowly as being limited to cases

that involve the minimum sentence legislation’, because the prosecutor

has a general duty to determine whether the offender has previous

convictions, as part of its duty to protect the public.

The extent of the prosecutor’s discretion and the role of the court

arose again in S v Bekker 2023 (1) SACR 307 (GP). What happened in

this case was that, after conviction, the magistrate enquired whether

the prosecutor wanted to prove previous convictions; the prosecutor

answered in the negative. The magistrate then asked the accused’s

legal representative whether his client was a rst offender. The

legal representative responded ‘that it was for the state to prove an

accused’s previous convictions and that an accused could not even

admit his previous convictions if [they] were not proven’ (at para [4]).

The magistrate repeated the question, and the legal representative

responded that his client was not a rst offender. It can be inferred t hat

the prosecutor based the decision not to prove previous convictions

on the fact that the SAP69 in his possession showed no previous

convictions, because the report continues that t he ‘magistrate concluded

that the SAP69 was wrong’ (ibid; also at para [13]). The magistrate then

asked for the prosecutor’s response, and the prosecutor requested a

postponement to obtain an updated SAP69. On the next court date,

the updated SAP69 indicated that the accused had a relevant previous

conviction (at para [5]).

One of the main grounds for the appeal again st the sentence was the

magistrate’s actions, in inquir ing from the accused’s legal representative

whether he was a rst offender, based on a number of cases ‘where

it was held that it is irregular for a court to elicit details of previous

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