Recent Case: Sentencing

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Date: 24 May 2019
• Author: Stephan Terblanche
• Pages: 443-452
• Citation: (2004) 17 SACJ 443

Recent cases



443

Sentencing

STEPHAN TERBLANCHE

University of South Africa

General principles

Pathological gambling disorder as a mitigating factor

In

S v Wasserman

2004 (1) SACR 251 (T) the court investigated whether a

pathological gambling disorder is a mitigating factor. The appellant (W)

suffered from this disorder, and stole in excess of R1,1 million from victims

not identified in the judgment. She was sentenced in terms of the provisions

of Act 105 of 1997 (incorrectly, it is submitted — see in this connection 'Section

51(2)' below). As a first step in determining whether this disorder is a

mitigating factor, Patel J concluded that the disorder is a 'progressive disease'

(para 7). This 'fact' was established, apparently, not through any evidence

lead at the trial or during the appeal, but with reference to a number of

research reports and articles. It is submitted that such an approach is

incorrect, as it amounts to the court taking judicial notice of a potentially

contentious factual issue (see, in this regard, PJ Schwikkard & SE Van der

Merwe

Principles of Evidence

2 ed (2002) 447-449 and 456-7). However, the

court found 'no authoritative recognition of the pathology in our law' (para

7). It then claimed that such recognition has been given overseas, and that

the pathology is recognized as a mitigating factor in countries such as Canada

and Australia (para 9). It is clear from the tone of the judgment that this

recognition is also given in this instance, although the court did not express a

firm conclusion at any point. Unfortunately, the only source that contains a

direct reference to the issue, namely

R v Petrovic

[1998] VSCA 95, closes with

(2004) 17 SACJ 443

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