S v Homareda

• Jurisdiction: South Africa
• Court: Witwatersrand Local Division
• Judge: Cloete J and Robinson AJ
• Judgment Date: 17 September 1999
• Citation: 1999 (2) SACR 319 (W)
• Hearing Date: 13 September 1999
• Counsel: Appellant in person, through a Spanish interpreter M I Thenga for the State

Cloete J:

In any democracy, tensions are likely to arise between the Courts and the Legislature where the Legislature seeks to combat crime by prescribing severe minimum sentences. The H justification for the enactment of such legislation clearly lies in the perceived deterrent effect of the sentences prescribed. But Courts do not take kindly to limitations on their discretion - and for good reason, as the operation of such legislation may result in an offender receiving an unjustifiably severe sentence. Since the advent of a constitutional democracy in this country, the Courts have a I new and legitimate approach for dealing with such cases. Borchers J, in the as yet unreported judgment in S v Blaauw (WLD case No 37/99) delivered on 2 August 1999, [*] referred to the right to a fair trial in interpreting legislation in such a way as to entitle the Court to

Cloete J

impose a sentence less than the statutorily prescribed minimum sentence; and the Full Bench of A the Namibian High Court in S v Vries 1996 (2) SACR 638 (Nm); 1996 (12) BCLR 1666 and S v Likuwa 1999 (2) SACR 44 (Nm), invoked the right not to be punished in a cruel or inhuman way to strike out legislative provisions prescribing minimum sentences.

In the instant case, the legislation which must be considered is s 51 of the Criminal Law B Amendment Act 105 of 1997 (the Act); and the offence is dealing in a dependence-producing substance (more specifically, importation of cocaine). The provisions of ss (2) and Schedule 2 relevant for present purposes prescribe that where it is proved that the value of the substance exceeds R50 000 a court is obliged to sentence a first offender to imprisonment for a period of not less than 15 years. Subsection (3)(a) provides that, if the court 'is satisfied that substantial and C compelling circumstances exist which justify the imposition of a lesser sentence' than the prescribed sentence, it may impose such lesser sentence. Subsection (4) provides that any sentence contemplated in the section 'shall be calculated from the date of sentence'. Subsection (5) precludes the suspension of any portion of the sentence. D

The appellant pleaded guilty to importing, and therefore dealing in, cocaine worth R90 000 and was correctly convicted. He was sentenced to the minimum period prescribed by the Act. He has appealed against the severity of the sentence; and his only prospect of success lies in a finding that substantial and compelling circumstances exist justifying the imposition of a lesser sentence. E

The meaning of the phrase 'substantial and compelling circumstances' has been considered in a number of recent cases where the minimum sentence prescribed by s 51 has been life imprisonment.

At the one end of the spectrum, there is the unreported judgment given by Leveson J in S v F Majalefa and Another (WLD case No 365/98) delivered on 22 October 1998. The learned Judge held:

'I am of opinion that the expression "substantial and compelling circumstances" was intended to denote factors of solid material significance in relation to all the other component factors which must irresistibly be taken into consideration for the purpose of sentence . . . The sentence must not lead to an injustice. For example, if the G period of imprisonment is excessive because a material factor, weighty when considered against other factors in the enquiry on sentence, has not received appropriate attention. I think on this basis that the sentencing process will be the same as it was before the passing of the new Act. It will not be for the Court to start with the proposition but because the Legislature has so enacted, life imprisonment is automatically to be ordained, unless some H mitigating factor is seen to exist. Instead, in my opinion, the starting point will still be a consideration of all the factors relevant to the passing of sentence. Proper consideration should be given to the well-known triad of factors, as dealt with in Zinn's case.'

I respectfully agree that, despite the provisions of the Act, the sentence imposed must not lead to I an injustice and that all the factors previously held to be relevant to the passing of sentence remain relevant. But the starting point must be that the sentence prescribed by Parliament has to be imposed and the sentencing process cannot be the same as it was before the Act was passed. As Borchers J pointed out in S v Blaauw (supra), the Act does not merely refer to 'circumstances' - as did other J

Cloete J

A previous Acts, for example s 335A of the Criminal Procedure Act 56 of 1955 and s 4 of the Dangerous Weapons Act 71 of 1968; it refers to 'substantial and compelling' circumstances, which is obviously a stricter test. I understand 'substantial' to mean weighty, as opposed to trifling or insignificant; and 'compelling' to import the notion of being urged irresistibly, constrained or obliged. At the other end of the spectrum, there is the interpretation given by Stegmann J in S v Mofokeng B and Another 1999 (1) SACR 502 (W). The learned Judge said at 523c-d:

'Therefore, I consider it to be clear enough that, for "substantial and compelling circumstances" to be found, the facts of the particular case must present some circumstance that is so exceptional in its nature, and that so C obviously exposes the injustice of the statutorily prescribed sentence in the particular case, that it can rightly be described as "compelling" the conclusion that the imposition of a lesser sentence than that prescribed by Parliament is justified'

and at 524c-d:

D 'As I understand this legislation, "substantial and compelling" circumstances must be factors of an unusual and exceptional kind that Parliament cannot be supposed to have had in contemplation when prescribing standard penalties for certain crimes committed in circumstances described in Schedule 2.'

With respect, this interpretation goes too far the other way. As Borchers J pointed out in S v Blaauw E (supra), the concept 'exceptional' is not to be found in the proviso and the words of the proviso should be interpreted in a broader way to enable a court to impose a sentence which in the circumstances of a particular case is fair to the offender and to society. The way to do that is not to interpret the proviso as postulating a strict test against which each individual factor is to be F measured (and, in most cases, rejected), but to interpret the proviso as requiring a court to consider the end result once all mitigating and aggravating circumstances have been taken into consideration (bearing in mind that it will frequently be the product, not the sum, of factors falling into each category which will be important). A broad interpretation enables the Court to prevent G injustices. A narrow interpretation results in the proviso being of little practical effect and imperils the constitutionality of the section.

Between the two extremes of interpretation which I have mentioned is the test propounded by Squires J in S v Madondo (NPD, case No CC22/99) in an unreported judgment delivered on 30 H March 1999. The learned Judge said:

'If the prescribed sentence was so inappropriate that no reasonable court would have imposed it, that would necessarily mean there are compelling reasons not to do so.'

I This approach finds support in the two recent decisions of Full Benches of the Namibian High Court, to which I have referred above: S v Vries and S v Likuwa. In each of these two cases, the Court concluded...