Recent Case: Sentencing

• Jurisdiction: South Africa
• Author: Annette van der Merwe
• Date: 24 May 2019
• Pages: 415-429
• Published date: 24 May 2019

Sentencing

ANNETTE VAN DER MERWE

University of Pretoria

In this contribution selected judgment s reported in the second and

third quarter s of 2015 are reviewed.

Sentencing procedures and general principles

1 General principles

The triad of Zinn

In the pursuit to impose an appropriate sentence, the most prominent

principle remains the so- called Zinn-t riad (A Kruger & VG Hiemstra

Hiemstra: Suid Afrikaanse Straf proses 7ed (2010) 724). Almost half a

century ago the court i n S v Zinn 1969 (2) SA 537 (A) 540G held that

‘What has to be considered is the tr iad consisting of the crime, the

offender and the interests of society’. This dic tum became trite law

(Kruger & Hiemstra ibid). Yet, in order for the court to direct itsel f

properly, these different elements of the triad need to be in balance.

Once the opposite is found, the sentence will be overturned on appeal.

In S v Mandlozi 2015 (2) SACR 258 (FB), the trial court, despite its

consideration of all the relevant factors and being commended for a

good judgment, was faulted on this basis: ‘The cour t a quo somehow

excessively stressed the gravity of the crime together w ith the harm

to society’s interest at the expense of the prole of the appellant. A s

a result of the imbalance the cour t a quo inappropriately i mposed a

sentence which tended to be more retributive than deterrent in effect ’

(at para [38]). See Factors affecting sentencing; Sentencing for selected

offences – Dealing in drugs be l ow.

In Seedat v T he State [2015] 3 All SA 93 (GP) the court emphasised

the balancing act but explicitly referred to an additional factor, as

highl ighted by S v Maty ityi 2011 (1) SACR (SCA) 40 at para [16], namely

that a ‘sound penal policy should … also be victi m centred’ (at para

[47]):

‘It is trite that in determining what an appropriate sentence should be,

the court will take into account, inter alia, the gravity of the offence, the

interest of society, the retributive aspects, rehabilitation, deterrence, and the

interest of the victim, in cases such as in casu, and the interest and personal

circumstances of the offender. It is generally a balancing act exercise the

court embarks upon, without overemphasizing one aspect against the others.’

415

(2015) 28 SACJ 415

© Juta and Company (Pty) Ltd