Recent Case: Sentencing

• Jurisdiction: South Africa
• Pages: 437-443
• Author: Stephan Terblanche
• Published date: 24 May 2019
• Date: 24 May 2019
• Citation: (2003) 16 SACJ 437

Sentencing



437

Sentencing

STEPHAN TERBLANCHE

University of South Africa, Pretoria

General principles

Balancing consistency and individualisation

Our highest appellate court restated the effect which the sentences imposed

in previous cases should have on the current case in

S v Jimenez

2003 (1)

SACR 507 (SCA). In a dictum for the majority Lewis AJA highlighted the

following (at para 6): (1) It may be useful to have regard to sentences

imposed in similar cases; (2) however, each offender is different and the

circumstances of each crime vary; (3) the other sentences can be no more

than 'guides% (4) these guides are to be used in conjunction with other

relevant considerations in exercising the sentence discretion. Further on (at

para 16) it is stated that other recent sentences point towards a general trend,

and 'a measure of consistency'. The reference to consistency is not entirely

clear, but probably indicates that consistency in sentencing is assisted when

previous sentences are considered. Throughout, however, these considera-

tions are phrased in very careful language, more focussed on setting the

boundaries of comparison with other cases than on explaining the usefulness

of sentencing guidelines or the need for greater consistency.

Mandatory and minimum sentences in terms of Act 105 of 1997

In

S v Vuma

2003 (1) SACR 597 (W) EM du Toit AJ added his voice of protest

against the provisions of the Act. Before quoting at length from the judgment

of Stegmann J in

S

v

Mofokeng

1999 (1) SACR 502 (W) 525, he remarked (at

599c):

`But I would be failing in my duty if, in [interpreting the Act and giving effect to its

provisions], I did not also voice my protest at what is surely the most invasive piece

of legislation enacted since the advent of the democratic South Africa...'

It is likely that this view influenced the learned judge's eventual judgment as

to the sentence (see

Substantial and compelling circumstances

below).

Jurisdictional issues

S v Jimenez

2003 (1) SACR 507 (SCA) para 4 confirms the decision in

S v

(2003) 16 SACJ 437

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