Recent Case: Sentencing

• Jurisdiction: South Africa
• Pages: 428-434
• Date: 24 May 2019
• Published date: 24 May 2019
• Citation: (2001) 14 SACJ 428
• Author: James Lund

428



SACJ •

(2001) 14 •

SAS

Sentencing

JAMES LUND

University of Natal, Pietermaritzburg

General Aspects

Appeal

S v Van Aswegen

2001 (2) SACR 97 (SCA) reaffirms the rule that a court of

appeal is not empowered to impose a sentence that exceeds the penal

jurisdiction of the trial court. In casu a magistrate had sentenced a robber to

twelve months' imprisonment, of which four months was suspended. On

appeal, the Provincial Division had increased the sentence to four years'

imprisonment (subject to the provisions of s 276(1)(z) of the Criminal

Procedure Act 1977). This was set aside in a further appeal since the

magistrate's jurisdiction was at the time restricted to twelve months'

imprisonment. But the case was then remitted to a regional court for

sentence, because the Supreme Court of Appeal agreed that the original

(magistrate's) sentence was wholly inadequate for a robbery in which the

appellant and two accomplices had punched and kicked the complainant,

drawing blood and requiring medical treatment, and had robbed him of

R1 500.

Review: sentence incapable of execution

In

S v M

2001 (2) SACR 316 (D it was held even though a committal to a

reform school had already been confirmed on review, that committal could

be set aside in a further review when it emerged that there were no reform

schools for girls in South Africa so that the order could not be carried out. The

case was remitted to the magistrate for imposition of a different sentence.

Minimum sentences: ss 51-3 of the Criminal Law Amendment

Act 105 of 1997

Schedule 2 offences

In

S v Gqamana

2001 (2) SA 28 (C) Thring J found that there were substantial

and compelling circumstances justifying the imposition of a sentence of ten

years' imprisonment (reduced to eight years to take account of time spent in

custody awaiting trial and sentence) rather than the minimum of life

imprisonment prescribed by the Act in a case of rape of a girl under the age

of sixteen years. (Although decided prior to

S v Malgas

2001 (1) SACR 469

(2001) 14 SACJ 428

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