Recent Case: Sentencing

• Jurisdiction: South Africa
• Citation: (2013) 26 SACJ 105
• Pages: 105-121
• Author: Stephan Terblanche
• Published date: 16 August 2019
• Date: 16 August 2019

Sentencing

STEPHAN TERBLANCHE

University of South Africa (UNIS A)

1. Sentencing procedures and general principles

1.1 General principles: the principle of legality

The principle of legality has been di scussed in some detail, in

connection with sentencing, in Director of Public Pro secutions,

Western Cape v Prins 2 012 (2) SACR 183 (SCA). This judgment has

been discussed in a case note i n the previous edition of SACJ (see

L Jordaan and S Terblanche ‘Does the principle of legality require

statutory crimes to h ave specif‌ic penalty clauses?’ (2012) 25 SACJ 379 -

389). Suff‌ice to state here that the court interpreted s 276(1) of the

Criminal Pro cedure Act 51 of 1977 to be suff‌iciently clear to provide

for the sentences to be imposed, even if a statutory offence contain s

no penalty clause. See also S v Booi 2012 (2) SACR 52 (FB); S v Mchunu

2012 (2) SACR 56 (KZP).

Recent cases 105

(2013) 26 SACJ 105

© Juta and Company (Pty) Ltd

1.2 Factors affecting sentencing

The role of the common purpose principle was noted in S v Dl amini

2012 (2) SACR 1 (SCA) at para [31]:

‘Of course, the fact that a robber acts with others when committing a crime

is an aggravating factor of which the court must take account. But it is not

permissible to make a accused “shoulder the blame” … because the other

robbers were not made to account for their part in the crime. An offender

can be punished only for his own criminal conduct and the conduct of

co-perpetrators that is imputed to him – nothing more.’

Later (at para [37]) the Court repeated that this cooperative effort was

aggravat ing.

Most role players in the criminal ju stice system know that the abuse

of alcohol plays a major role in the commission of cri me. Our law

largely ignore such abuse as a factor in sentencing. In S v Latha 2012

(2) SACR 30 (ECG) at para [15] Kemp AJ noted some of the diff‌icu lties

in this respect. A s often happens, in this case t he accused appeared

specif‌ically to have taken the liquor ‘as a tool to give him the courage

to commit’ the murder. Although the court accepted t hat the accused

‘were to a degree intoxicated’, the judgment contains only an implied

indication that it reduced their moral blameworth iness (at para [15]): it

was one of the factors which caused the State to accept the presence

of substantial and compelling circ umstances (at para [28]). (See also

S v Raath 2009 (2) SACR 46 (C) paras [22] et seq, and the discu ssion

thereof in (2010) 23 SACJ 159 at 160.)

Many judgments dealing with appeals aga inst sentence also had to

consider that the appellant had spent a long time in custod y awaiting

f‌inalisation of the trial. The Court i n S v Dlamini 2012 (2) SACR 1

(SCA) at para [41] made a number of interesting observations with

respect to the manner in which t his period affects the sentence. First, it

noted that ‘it is trite’ that this per iod must be taken into consideration,

and that this ‘is done by making t he period of imprisonment actua lly

imposed shorter’ than it would other wise have been. However, how

exactly this should be done is not yet clear. So far courts have done

everything from ‘an i nexact subtraction’ to subtracting a period t wice

the length of time spent awaiting f‌inal isation (cf S v Stephen 1994 (2)

SACR 163 (W); S v Brophy 2007 (2) SACR 56 (W)). As the Court did not

hear any argument on what the correct approach would be (Dlamini at

para [42]), it simply decided to credit the appellant with slightly more

than the 10 months spent in detention, by subtracting 12 months f rom

what would otherwise have been considered the appropriate sentence.

(See also Cumulative effect of sentences b el ow.)

The court in S v Thole 2 012 (2) SACR 306 (FB) at para [14] followed

the example of S v Vilakazi 2009 (1) SACR 552 (SCA) at 575, where

the Supreme Court of Appeal ordered that when considering t he

106 SACJ . (2013) 1

© Juta and Company (Pty) Ltd