Recent Case: Sentencing
| Jurisdiction | South Africa |
| Published date | 03 September 2019 |
| Author | Stephan Terblanche |
| Pages | 268-280 |
| Date | 03 September 2019 |
268
SACJ •
(2004) 17
the trial, and again incriminate the accused. There was also no evidence
explaining how the accused had been identified other than by the
incrimination of one of their number. Discharge was therefore refused. (Cf
S v Lubaxa
S v Legote
Right to silence and against self incrimination
The judgment in the case of
National Director of Public Prosecutions v
Mohamed
2003 (2) SACR 258 (C) dealt with a restraint order issued in terms
of the Prevention of Organised Crime Act 1998. Section 26 of the Act allows
the accused access to restrained funds for living and legal expenses, subject
to two provisos. Firstly, the accused must disclose under oath his interest in
the property subject to the restraining order. Secondly, the accused must
satisfy the court that he cannot meet his expenses out of unrestrained
property.
The court held that these provisos did not violate the accused's right to
silence or his right against self-incrimination as the disclosures required by
the statute for the release of funds were aimed at securing sufficient property
against which an ultimate confiscation order might operate, and not at
acquiring incriminating testimony to secure his conviction (at 282h-283a).
The accused's interests are protected by an absolute prohibition on the use of
direct evidence so obtained. The court has a discretion to admit derivative
evidence subject to the accused's right to a fair trial (at 285g-h).
These principles are not new, and apply to the provisions of any statute
compelling disclosure not for the purposes of acquiring incriminating
evidence but for some other legitimate purpose.
Sentencing
STEPHAN TERBLANCHE
University of South Africa, Pretoria
General principles
The role of sentences in other cases
In
S v 0
2003 (2) SACR 147 (C) the court compared the sentences in various
other cases to come to the conclusion that the imposed sentence was
excessive and out of step with that imposed for similar offences. Again the
court stressed the basic principles: the facts and circumstances of no two
(2004) 17 SACJ 268
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