Recent Case: Sentencing

• Jurisdiction: South Africa
• Pages: 422-434
• Published date: 24 May 2019
• Date: 24 May 2019
• Citation: (2017) 30 SACJ 422
• Author: Annette van der Merwe

Sentencing

ANNETTE VAN DER MERWE

School of Law, University of Limpopo

Selected judgments reported in t he South African Cr iminal Law

Reports, from July to October 2017, are reviewed in this contribution.

It is evident from the discussion below that offences falling under t he

Criminal L aw Amendment Act 105 of 1997 dominated the scene.

1 Sentencing procedures and general principles

1.1 General Principles

1.1.1 Unjustified disparity

Though a degree of diversity in sentencing decisions has b een

accepted as inevitable, unjustied dispar ity has, however, been

criticised as unacceptable (South Africa n Law Commission Discussion

Paper 102 (Project 107) ‘Sexual Offences: Process and Procedure’ Vol

1 (2001) 732). Unjustied disparity would occur where sentences are

not uniform owing to a lack of consensus on the par t of the judiciary

on a number of issues: the relative seriousness of offences, mitigating

and aggravating factors, the relevant circumst ances of the offender

and the relative weight to be attached to each of these factors (ibid).

In D irector of Public Prosecutions, Gauteng v Tsotetsi 2017 (2) SACR

233 (SCA) disparity occurred wit hin the same tria l as is evident from

the court’s questionable different approaches towards the co-accused .

Relying on S v Dombeni1991 (2) SACR 241 (A) at 245c-d, the ge neral

principle regarding uniformit y in sentences was re-iterated during an

appeal by the state (Tsotetsi at para [29]):

‘if justice is to be done and seen to be done, where anumber of people

are convicted of the same crime, there ought to be reasonable uniformity

in respect of the sentences imposed on them, due regard being given to

respective mitigating and aggravating circumstances.’

T’s sentence for two murders imposed by the trial court (20 years’

imprisonment on each count) was, accordingly, brought on par with

the life sentence imposed by the same court on her co -accused (being

convicted of the second murder only). T was after all the planner and

co-executioner of both murders, therefore her role was ‘a leading one

and the sentence should have reected the seriousness of what she

had done’ (supra). (See Contract killing b el ow).

422 SACJ . (2017) 3

(2017) 30 SACJ 422

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