Recent Case: Sentencing
| Jurisdiction | South Africa |
| Pages | 136-153 |
| Author | Annette van der Merwe |
| Date | 04 July 2019 |
| Published date | 04 July 2019 |
Sentencing
ANNETTE VAN DER MERWE
University of Limpopo
1 Sentencing procedures and general principles
1.1 Proportionality, the Zinn-triad and previous convictions
It is trite that the principle of proportiona lity is applicable to sentencing
in general (N Steytler Cons titutional Crimina l Procedure (1998) 409;
CR Snyman Criminal L aw 6ed (2014) 19; SS Terblanche A Guide to
Sentencing in South Africa 3ed (2016) 167). The implication is that a
sentence should be individualised to t the crime and t he criminal,
commonly known as two of the Zin n triad of factors relevant to
sentencing (Steytler op cit 411). The third factor is the interest of societ y
but becomes less important in instances where the offence involves
drug addiction, in which case it causes mainly the perpetrator himself
to suffer the consequences. In evaluating the seriousness of these
substance-related crimes, the role and weight of previous convictions
are often misunderstood and may give rise to a disproportionate
sentence. The case of S v Frederick 2018 (2) SACR 686 (WCC) serves
as an illustration in this regard. The two accused were convicted of
possessing minima l amounts of undesirable dependence-producing
substances, namely “tik” and cocaine, in contravention of s 4(b) of
the Drugs and Drug Trafcking Act 140 of 1992. They appeared in
two separate cases that came before the high court on review. Both
offenders had several previous convictions for the same offence,
namely ve and 11 such convictions, respectively. For the present
offences F was sentenced to a fully suspended sentence of three-years’
imprisonment, and the other accused to 36 -months’ imprisonment in
terms of s 276(1)(i) of the Criminal Procedure Act. In remarking on
the disproportionalit y of these sentences to the offences committed,
Thulare JA referred (at para [7]) to an earlier judgment of himself in
S v Heuwel 2018 (2) SACR 436 (WCC) at paras [14]-[15] (at the time still
unreported), and highlighted that a pet ty offence remains petty, no
matter how often it is committed:
‘The number of times that the offence is being committed does not make it
less petty. ... Furthermore, it cannot be that once the previous convictions are
admitted or proven, the convictions of old are resurrected and the previous
sentences are extinguished, leaving the accused open to be sentenced again
when he has already paid his dues.
The moral culpability must bear relation to the crime he was currently
convicted of. The length of the period of imprisonment imposed on this
136 SACJ . (2019) 1
(2019) 32 SACJ 136
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accused bears no relation to the gravity of the offence of which he has been
convicted. … The length of the sentence which has been imposed on the
accused is so disproportionate that, in my view, it denied him his humanity.’
In deciding on an appropriate (and proportionate) sentence, courts
should thus not over-emphasise previous convictions of minor offences.
They should always balance the relevant factors in the Zinn-t riad, as
well as the aims of punishment (at para [13]):
‘The previous convictions of an accused have a place in sentencing an
offender, as required by s 271(4) of the CPA. They should, however, not
be permitted to overwhelm the triad in Zinn, which remains factors which
are relevant to just sentencing. The fact that one is dealing with a repeat
offender with previous convictions is not sufcient reason to ignore the duty
to balance the relevant factors and the purpose of punishment. The sense of
proportion should not be lost and sentences imposed which, by comparison,
are too harsh — S v Smith 2003 (2) SACR 135 (SCA) para 5.’
See Specic sente nces, Committal to a treatment centr e in terms of
s 276(1)(e) of the Criminal Procedure Act below
In S v Masuku 2019 (1) SACR 276 (GJ) the court was clear, at
para [36], that proportionalit y and balancing the factors in the Zinn
triad are synonymous and held that ‘a proportionate sentence and a
balanced one are one and the same’. Kemp (ed) (Criminal Law in South
Africa 3ed (2018) 26) further links a balanced sentence to the ideal of
a just and fair punishment, by implication equati ng it to the principle
of proportionality. The above discussion shows that the concepts of
proportionality, balancing of the Zinn-triad and a just sentence, are all
interlinked. see Sentencing for selected offences, Ra pe below
1.2 Probation officer reports
As one of the role-players in court during the sentencing phase, the
probation ofcer’s role is, inter alia, to compile pre-sentence reports
about the accused. The aim is to provide the cour t with information
about his or her childhood, schooling and employment histor y,
interpersonal relationships, as well as the reason why the offender
committed the crime (SS Terblanche (A Guide to Sentencing in South
Africa 3ed (2016) 19, 105). In addition, suggestions on sentences may be
included, but courts are often critical about its usefulness. Terblanche
(ibid) suggests that courts expect too much of social workers in this
regard, as their expertise lies in the eld of human behaviour. In S v
Masuku 2019 (1) SACR 276 (GJ), at para [27], the social worker’s report
was found to be of little practical value because the discussion on
the different sentence options was academically orientated. The court
further highlighted two factors absent from the report, that would
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