Recent Case: Sentencing
| Author | van der Merwe, A. |
| DOI | https://doi.org/10.47348/SACJ/v35/i2a8 |
| Published date | 03 October 2022 |
| Date | 03 October 2022 |
| Citation | (2022) 35 SACJ 268 |
| Pages | 268-283 |
Sentencing
ANNETTE VAN DER MERWE
University of Limpopo
1 General principles of sentencing
1.1 The sentencing process
Section 274 of the Criminal Procedure Act 51 of 1977 allows the court
to ‘receive such evidence as it thinks t, in order to inform itsel f as
to the proper sentence to be passed’. In S v Olivier 2010 (2) SACR 178
(SCA) (at para [8]), Majiedt AJA highlighted that the underlying ai m
of this section is to empower the court wit h ‘as much information
as possible regarding the perpetrator, the circumstances of the
commission of the offence, and the victim’s circumstances, including
the impact which the commission of the of fence had on the victim’.
It was emphasised that all role-players, in fact, have a duty ‘to complete
the picture as far as possible at sentencing stage’ (ibid). Unlike in some
other instances (cf S v Matyityi 2011 (1) SACR 40 (SCA) at para [15]),
succeeded in having obtained ‘a complete and balanced picture’.
Although S did not testify in mitigation of sentence in the trial cour t,
his legal representatives made submissions regardi ng his personal
circumstances in det ail, including his upbringing and fam ily history.
In addition, the trial cour t also considered the following:
… the reports of expert witnesses, and importantly the impact and effect of
the crimes on the deceased’s family, the nature of the crime, the seriousness
of the offences, their cumulative effect and the interests of society, including
the possibility of rehabilitation.
In S v Pedro 2021 (2) SACR 102 (WCC) (at para [37]), within the context
of driving under the inuence and possible suspension of a driving
licence, the long-standing approach in S v Banda 1991 (2) SA 352 (BG)
at 355A, was reiterated:
[T]he elements of the triad contain an equilibrium and a tension. A court
should, when determining sentence, strive to accomplish and arrive at a
judicious counterbalance between these elements in order to ensure that one
element is not unduly accentuated at the expense of and to the exclusion of
the others.
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© Juta and Company (Pty) Ltd
1.2 Factors affecting sentence
1.2.1 Victim impact statements ( VIS)
Mitigating and aggravating circum stances are those which are present
during and after the comm ission of a crime and which may inuence
the sentence (SS Terblanche The Guide to Sentencing in South
Africa 3ed (2016) 209). The effect of the crime on the victim is an
example of a circumstance present after the crime has been commit ted
and evidence in this regard is mostly presented i n sexual offences and
murder matters, as is evident from the cases below.
S v AM 2021 (2) SACR 437 (WCC) involved a matter of ‘corrective
rape’ and a victim impact repor t was obtained on the complainant.
It told a story of continuing personal hardship on var ious fronts,
caused by AM’s violent actions toward her. The report concluded that,
since the incident, three years earlier:
[S]he [still] experienced nightmares, ashbacks, had difculty trusting
males, and had become introverted. She had regular emotional breakdowns
and episodes of rage, which were uncharacteristic. The complainant also
experienced constant feelings of fear and isolation, and her sense of security
was violated. The complainant reported that the acts of the appellant have
broken her as a person, and she nds daily life extremely difcult to navigate.
The medical examination and HIV-testing that she had to be subjected to
caused further trauma (at para [8]).
In addition, after an attempted suicide, she ‘engaged in self harm due
to continued negative thoughts’ (at para [9]). Not only did she have to
endure negative remarks from members of the communit y, but some
also ‘pressured her to withdraw the case and th reatened to harm her if
she did not comply’ (ibid). These incidents further contributed to her
tendency to withdraw from society. The court concluded that:
It is clear from the report that the incident had a signicant impact on her
normal physical, psychological and emotional wellbeing, as well as her
cognitive behaviour and interpersonal relationships (ibid).
This fact was taken into account as an aggr avating factor that should be
given appropriate weight in consideration of the sentence (at paras [13]
and [16]). See Sentencing for selected offences – Cor rective rape b elow.
Court of Appeal referred to the impact and effect of the crime on the
deceased’s family as an important factor relevant in deter mining the
appropriate sentence (at para [14 8]). No further detail was provided but
the trial judgment (S v Soni (CC29/14P) [2018] ZAKZPHC 74 (26Octobe r
2018)) revealed that the father of the deceased prepared an impact
statement (at para [68]). It was handed in by consent. Mr Sewram
senior indicated the extent of the loss suffered not only by the family
but also the community as the deceased
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