Recent Case: Sentencing
| Citation | (2021) 34 SACJ 398 |
| Date | 17 November 2021 |
| Author | Terblanche, S. |
| DOI | https://doi.org/10.47348/SACJ/v34/i2a12 |
| Pages | 398-413 |
| Published date | 17 November 2021 |
Sentencing
STEPHAN TERBLANCHE
University of KwaZulu-Natal
1 General principles of sentencing
1.1 Mitigating factors
1.1.1 Political leaders
In S v Lungisa 2021 (1) SACR 1 (SCA), the regional court had convicted
the appellant of assault with intent to cause grievous bodi ly harm.
This followed a well-publicised event when, during a meeting in the
Nelson Mandela Bay Municipal Council, the appellant hit a member
of an opposing political part y over the head with a glass jug lled
with water. The appellant appealed against his sentence of, effectively,
two years’ imprisonment (for more detail, see Assault with intent to
do grievous bodily harm below). One of his main objections was that
the trial court had not properly considered, as a m itigating factor, his
achievements as a political activist – he argued t hat these achievements
caused many members of society to respect h im (at paras [7], [10]).
The Supreme Court of Appeal rejected t his claim. Instead, it held that,
in a country which ‘suffers from uncontrol led and unacceptable levels
of violence’ (at para [15]), the community is
… entitled to expect a high level of responsible behaviour and maturity from
its leaders… The community expects its representatives to uphold the law
and to act in accordance with the rules. If councillors resort to aggression
and violence when decisions do not favour them, the interests of society are
undermined (at para [13]).
Instead of setting a good example, as leader of his par ty in the Council,
he led what the trial court labelled as ‘street t hugs’ – a description
condoned by the Supreme Court of Appeal (at para [14]).
1.1.2 Pre-sentence detention
The Supreme Court of Appeal briey considered the role played by the
period that a person spends in detention wh ile awaiting nalisation
of the case, in S v Livanje 2020 (2) SACR 451 (SCA). During argument
the appellant referred the court to some of its own judgments, where
‘this Court held that t he trial court did not exercise its sentencing
discretion judiciously in failing to ta ke into account the time spent
in custody’ (at para [27]). Instead of discussing those judgments,
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in Livanje the court preferred to reiterate what it had held in S v Radeb e
2013 (2) SACR 165 (SCA) at para [14], namely that, ‘the test is not
whether on its own that period of detention constitutes a subst antial
or compelling circumstance, but whether the ef fective sentence
proposed is proportionate to the crime’. In this mat ter, the appellant
was sentenced just over nine months from the date of his ar rest, a
period described by the cour t as ‘not inordinately long’ (at para [28]).
The appellant had also been hospitalised dur ing this period, for an
unspecied time. Sti ll, the Supreme Court of Appeal also took this
period into account in determin ing an appropriate sentence (ibid).
It is worth looking at S v Radebe (supra) in a little more detail, as there
the court specical ly addressed the role of the period of pre-sentence
detention. This followed a few judgments (eg, S v Stephen 1994 (2)
SACR 163 (W); S v Brophy 2007 (2) SACR 56 (W)) which suggested that
a convicted person should be credited, not only with the per iod spent
in detention awaiting completion of the trial, but double this period.
Radebe rejected this approach, stating th at, instead of a so-called
‘mechanical approach’ (at para [13]), a ‘better approach … is that the
period in detention pre-sentencing is but one of the factors th at should
be taken into account in determini ng whether the effective period of
imprisonment to be imposed is just ied’ (at para [14]).
This view is not without its challenges. First, t he Supreme Court of
Appeal should, at the very least, acknowledge that pre-tr ial detention
is punitive in its effect. The loss of freedom dur ing detention while
awaiting nalisation is, essential ly, no different to the loss of freedom
while serving a sentence of imprison ment. This loss of freedom is
the main punitive element of imprisonment – people are sent to
prison as punish ment, and not for additional elements of punishment
(D Van Zyl Smit South African Prison Law and Practice (1992) 104).
The limitation of their f reedom during pretrial detention is vir tually
the same. The second issue is that pre-sentence detention does not
naturally relate to any of the Zinn -triad, and it cannot logically be
related to a proportionality bet ween sentence and seriousness of the
crime, regardless of what the Supreme Court of Appe al said in this
connection in Radebe. Final ly, as was noted in SS Terblanche A Guide
to Sentencing in South Africa 3ed (2016) 233,
When pre-sentence detention is taken as one of the sentencing factors, it
is unknown whether it made any difference to the eventual sentence, as
was the case in Radebe. On the other hand, to determine an appropriate
sentence, and then deduct a period roughly similar to that already spent in
custody by the offender, is unproblematic.
1.1.3 Globular sentences
An accused who has been convicted of more than one offence, should
be sentenced for each of these offences. However, the sentencing court
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