Recent Case: Sentencing

• Jurisdiction: South Africa
• Date: 16 August 2019
• Author: Annette van der Merwe
• Pages: 453-466
• Citation: (2014) 27 SACJ 453
• Published date: 16 August 2019

Sentencing

ANNETTE VAN DER MERWE

University of Pretoria

In this contribution judgments rep orted in the second half of 2014 are

reviewe d.

1 Sentencing procedures and general principles

1.1 General Principles

1.1.1 Factors affecting sentencing

There is no absolute line between culpabilit y and non-culpability

(CR Snyman Criminal Law 5ed (2008) 176). This is conf‌irmed by the

existence of the concept of dimini shed responsibility, (a ‘tussenposisie’,

according to A Kruger and VG Hiemstra Hiem stra: Suid Afrikaanse

Strafproses 7ed (2010) 245), which is not a defence, but provides for

reduction in sentence. The offender’s mental and emotional state at the

time of the commission of an offence may be af fected by a variety of

either pathological or non-pathological factors (S Terblanche Guide to

sentencing in South Africa 2ed (2007) 198-199). In the latter instance

factors such as provocation, rage or jealousy may inf‌luence the offender

to the extent that his or her power of restraint or self- control, compared

to a normal person, is substantia lly reduced. In such a case the offender

can rely on dimin ished responsibil ity as a weighty mitigating factor.

In S v Mathe 2014 (2) SACR 298 (KZD) at paras [16]-[26] the court, wit h

reference to precedent, highlighted important principles gu iding an

enquiry about dim inished responsibility. Firstly, because dimini shed

responsibility is not a def‌inite condit ion but a state of mind varying

in degree, each case will be deter mined on its own facts (at para [16]).

The essential question is the extent, or deg ree, to which the particular

circumstances reduced the powers of restr aint and self-control of an

offender. Gorven J noted as follows (with reference to S v Mnisi 2009

(2) SACR 227 (SCA) at para [5]):

‘Whether an accused acted with diminished responsibility must be

determined in the light of all the evidence, expert or otherwise. There is

no obligation upon an accused to adduce expert evidence. His ipse dixit

may suff‌ice provided that a proper factual foundation is laid which gives

rise to the reasonable possibility that he so acted. Such evidence must be

carefully scrutinised and considered in the light of all the circumstances and

the alleged criminal conduct viewed objectively. The fact that an accused

Recent cases 453

(2014) 27 SACJ 453

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