S v Malgas

• Jurisdiction: South Africa
• Judgment Date: 19 March 2001
• Citation: 2001 (2) SA 1222 (SCA)

S v Malgas
2001 (2) SA 1222 (SCA)

2001 (2) SA p1222

Citation	2001 (2) SA 1222 (SCA)
Case No	117/2000
Court	Supreme Court of Appeal
Judge	Harms JA, Marais JA, Cameron JA, Chetty AJA and Mthiyane AJA
Heard	February 16, 2001
Judgment	March 19, 2001
Counsel	P R Cronje for the appellant, at the request of the Court.; H Bakker for the State.

Flynote : Sleutelwoorde

Criminal procedure — Sentence — Imposition of — Minimum sentences E prescribed by legislation — Criminal Law Amendment Act 105 of 1997, s 51 — Section 51 limiting but not eliminating courts' discretion in imposing sentence in respect of offences referred to in Schedule 2 — Courts required to approach imposition of sentence conscious that Legislature ordained life imprisonment (or particular prescribed period F of imprisonment) as sentence that should ordinarily and in absence of weighty justification be imposed for listed crimes in specified circumstances — Unless truly convincing reasons exist for different response, crimes in question therefore required to elicit severe, standardised and consistent response from courts — Specified sentences not to be departed from lightly and for flimsy G reasons — Legislature, however, deliberately leaving it to courts to decide whether circumstances of any particular case calling for departure from prescribed sentence — All factors traditionally taken into account in sentencing (whether or not they diminish moral guilt) continue to play role and none excluded at outset from consideration in sentencing process — Ultimate impact of all circumstances relevant to H sentencing to be measured against composite yardstick (substantial and compelling) and must be such as cumulatively justify departure from standardised response that Legislature ordained.

Criminal procedure — Sentence — Imposition of — Minimum sentences prescribed by legislation — Criminal Law Amendment Act 105 of 1997, s 51 — In applying s 51, inappropriately constricting to use concepts I developed in dealing with appeals against sentence as sole criterion — If sentencing court on consideration of circumstances of particular case satisfied that they render prescribed sentence unjust in that it would be disproportionate to crime, criminal and needs of society resulting in injustice, it is entitled to impose lesser sentence — In so doing, account must J

2001 (2) SA p1223

be taken of fact that crime of that A particular kind has been singled out for severe punishment and that sentence to be imposed in lieu of prescribed sentence should be assessed paying due regard to benchmark which Legislature provided.

Constitutional law — Human rights — Right of accused to fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Minimum sentences prescribed by legislation — Criminal Law B Amendment Act 105 of 1997, s 51 — Section 51 limiting but not eliminating courts' discretion in imposing sentence in respect of offences referred to in Schedule 2 — Courts required to approach imposition of sentence conscious that Legislature ordained life imprisonment (or particular prescribed period of imprisonment) as sentence that should ordinarily and in absence of weighty C justification be imposed for listed crimes in specified circumstances.

Constitutional law — Human rights — Right of accused to fair trial in terms of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Minimum sentences prescribed by legislation — Criminal Law Amendment Act 105 of 1997, s 51 — Section 51 limiting but not eliminating courts' discretion in imposing sentence in respect of offences referred to in Schedule 2 — Courts required to approach imposition of sentence conscious that Legislature ordained life imprisonment (or particular prescribed period of imprisonment) as sentence that should ordinarily and in absence of weighty justification be imposed for listed crimes in specified circumstances.

Headnote : Kopnota

Section 51 of the Criminal Law Amendment Act 105 of 1997 has limited but not eliminated the courts' discretion in imposing sentence in respect of offences referred to in Part 1 of Schedule 2 (or imprisonment for other specified periods for offences listed in other D parts of Schedule 2). Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances. Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are E therefore required to elicit a severe, standardised and consistent response from the courts. The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation and marginal differences in personal F circumstances or degrees of participation between co-offenders are to be excluded. The Legislature has, however, deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. All factors (other than those set out above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the G sentencing process. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ('substantial and compelling') and must be such as cumulatively justify a departure from the standardised response that the Legislature H has ordained. (Paragraph [25] at 1235F - 1236C.)

In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion. If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, I so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence. In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the benchmark J

2001 (2) SA p1224

which the Legislature has provided. (Paragraph [25] at 1236C - E/F.)

The appellant had committed a murder at the instance of the A deceased's wife. She had confessed to the crime, which would otherwise not have been discovered, and was, after a trial in a High Court, sentenced to life imprisonment in terms of s 51 of the Criminal Law Amendment Act. In an appeal against that sentence,

Held, that the circumstances in which the crime had been committed were undoubtedly such as to have rendered it necessary to B impose a sentence of imprisonment for life unless substantial and compelling circumstances justified a lesser sentence. The shooting had been premeditated and planned and the fact that the planning and premeditation had occurred not long before the deed had been accomplished could not alter that. It had been carried out in the execution of a common purpose to kill the deceased. (Paragraph [34] at 1238H - I/J.) C

Held, further, that, giving all due weight to the enormity of the crime and the public interest in an appropriately severe punishment being imposed for it, the personal circumstances of the appellant (her relative youth, her clean record and her vulnerability to the deceased's wife's influence) and the fact that she had been dragooned into the commission of the offence by a domineering D personality were strongly mitigating factors. She had gained nothing from the commission of the crime. Her remorse could not be doubted and her spontaneous confession which brought to light the commission of a crime which would otherwise have gone undetected was deserving of recognition in a tangible sense. She was young enough to make rehabilitation of her a real prospect even after a long period of imprisonment. These circumstances, cumulatively regarded, indicated E that a sentence of life imprisonment would be unjust. They qualified therefore as substantial and compelling circumstances within the meaning of s 51. (Paragraph [34] at 1238I/J - 1239C/D.)

Held, further that, it remained a particularly heinous crime of the kind which the Legislature had singled out for severe punishment and the sentence to be imposed in lieu of life imprisonment had to be F assessed paying due regard to the bench mark which the Legislature had provided. Imprisonment for 25 years was appropriate. (Paragraph [34] at 1239C/D - D/E.)

Cases Considered

Annotations

Reported cases

Flannery v Halifax Estate Agencies G Ltd [2000] 1 WLR 377 (CA): dictum at 381H approved

S v Blaauw 1999 (2) SACR 295 (W): considered

S v Boer en Andere 2000 (2) SACR 114 (NC): considered

S v Dithotze 1999 (2) SACR 314 (W): considered

S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC) (2000 (2) SACR 443): dictum in paras [37] and [38] at 1100I - 1102B (SA) and 464i - 465j H (SACR) applied

S v Homareda 1999 (2) SACR 319 (W): considered

S v Jansen 1999 (2) SACR 368 (C): considered

S v Khanjwayo; S v Mihlali 1999 (2) SACR 651 (O): considered

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