S v Malgas

• Jurisdiction: South Africa
• Judge: Harms JA, Marais JA, Cameron JA, Chetty AJA and Mthiyane AJA
• Judgment Date: 19 March 2001
• Citation: 2001 (1) SACR 469 (SCA)
• Hearing Date: 16 February 2001
• Counsel: P R Cronje for the appellant. H Bakker for the State.
• Court: Supreme Court of Appeal

Marais JA:

[1] Judicial hostility to legislative prescriptions which B strip courts of their sentencing discretion is hardly surprising. Given the infinite variety of circumstances which attend the commission of crimes, who are better placed than the courts, which experience daily the complexities of imposing sentences which are as just as human fallibility can make them, to understand the arbitrariness and potential unjustness of such edicts? Sentencing has rightly been C described as 'a lonely and onerous task'. [1] For those who must shoulder that responsibility in society's name, to have to impose a statutorily decreed sentence which is manifestly unjust in the particular circumstances of the case is a monstrous thing.

[2] That said, there is a significant distinction between, on the one hand, a legislative provision which does in truth deprive a court D of any sentencing discretion at all, or so attenuates it that its existence is illusory, and, on the other, one which fetters only partially the exercise of the discretion and leaves it otherwise largely intact. Ritualistic incantations of the doctrine of the separation of powers to justify resistance to any form of legislative intervention in this regard seem to me to lack E plausibility. Subject of course to constraints going to substance imposed by the Constitution, Parliament is obviously empowered to create new offences and abolish old ones (whether they were statutorily created or originated in the common law) and to provide for the penalties courts may impose. It may, and does, limit the sentencing powers of courts in a variety of ways. The types of sentence which may F be imposed may be laid down, for example, those listed in s 276 of the Criminal Procedure Act 51 of 1977. A maximum penalty of one kind or another may be specified. Even in those countries where the doctrine of the separation of powers is an article of faith, legislatures have been doing such things for generations without protest from the judiciary or the citizenry. No court exercising criminal jurisdiction in South G Africa could convincingly claim to be the sole constitutional repository of power to do such things. Indeed, the courts have no inherent power to do any such thing. They cannot create new crimes. Nor can they invent a new kind of penalty such as, for example, physical detention under lock and key at some place other than a prison. H

[3] What is rightly regarded as an unjustifiable intrusion by the Legislature upon the legitimate domain of the courts, is legislation which is so prescriptive in its terms that it leaves a court effectively with no sentencing discretion whatsoever and obliges it to pass a specific sentence which, judged by all normal and well-established sentencing criteria, could be manifestly unjust in the I circumstances of a particular case. Such a sentencing provision can accurately be described as a mandatory provision in the pejorative sense intended by opponents of

Marais JA

legislative incursions into this area. [2] A provision A which leaves the courts free to exercise a substantial measure of judicial discretion is not, in my opinion, properly described as a mandatory provision in that sense. As I see it, this case is concerned with such a provision.

[4] Sections 51 and 53 of the Criminal Law Amendment Act 105 of 1997 provide:

'51. Minimum sentences for certain serious offences. B

(1) Notwithstanding any other law but subject to ss (3) and (6), a High Court shall, if it has convicted a person of an offence referred to in Part I of Schedule 2, sentence the person to imprisonment for life.

(2) Notwithstanding any other law but subject to ss (3) and (6), a regional court or a High Court shall - C

(a)

if it has convicted a person of an offence referred to in Part II of Schedule 2, sentence the person in the case of -

(i)

a first offender, to imprisonment for a period not less than 15 years;

(ii)

a second offender of any such offence, to imprisonment for a period not less than 20 years; and

(iii)

a third or subsequent offender of any such offence, to D imprisonment for a period not less than 25 years;

(b)

if it has convicted a person of an offence referred to in Part III of Schedule 2, sentence the person, in the case of -

(i)

a first offender, to imprisonment for a period not less than 10 years;

(ii)

a second offender of any such offence, to imprisonment for a period not less than 15 years; and E

(iii)

a third or subsequent offender of any such offence, to imprisonment for a period not less than 20 years; and

(c)

if it has convicted a person of an offence referred to in Part IV of Schedule 2, sentence the person, in the case of -

(i)

a first offender, to imprisonment for a period not less than five years;

(ii)

a second offender of any such offence, to imprisonment for a F period not less than seven years; and

(iii)

a third or subsequent offender of any such offence, to imprisonment for a period not less than 10 years:

Provided that the maximum sentence that a regional court may impose in terms of this subsection shall not be more than five years longer than the minimum sentence that it may impose in terms of this subsection. G

(3)(a) If any court referred to in ss (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.

(b) If any court referred to in ss (1) or (2) decides to H impose a sentence prescribed in those subsections upon a child who was 16 years of age or older, but under the age of 18 years, at the time of the commission of the act which constituted the offence in question, it shall enter the reasons for its decision on the record of the proceedings.

(4) Any sentence contemplated in this section shall be calculated from the date of sentence. I

(5) The operation of a sentence imposed in terms of this section shall not be suspended as contemplated in s 297(4) of the Criminal Procedure Act 51 of 1977.

Marais JA

(6) The provisions of this section shall not be applicable in respect A of a child who was under the age of 16 years at the time of the commission of the act which constituted the offence in question.

(7) If in the application of this section the age of a child is placed in issue, the onus shall be on the State to prove the age of the child beyond reasonable doubt.

(8) . . .

53. Saving. B

(1) Sections 51 and 52 shall, subject to ss (2) and (3), cease to have effect after the expiry of two years from the commencement of this Act.

(2) The period referred to in ss (1) may be extended by the President, with the concurrence of Parliament, by proclamation in the Gazette for one year at a time.

(3) Any appeal against -

(a)

a conviction of an offence referred to in Schedule 2 C of this Act and a resultant sentence imposed in terms of section 51; or

(b)

a sentence imposed in terms of s 51,

shall be continued and concluded as if s 51 had at all relevant times been in operation.'

[5] Schedule 2 is as follows: D

'PART I

Murder, when -

(a)

it was planned or premeditated;

(b)

the victim was -

(i)

a law enforcement officer performing his or her functions as E such, whether on duty or not; or

(ii)

a person who has given or was likely to give material evidence with reference to any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act 51 of 1977), at criminal proceedings in any court;

(c)

the death of the victim was caused by the accused in F committing or attempting to commit or after having committed or attempted to commit one of the following offences:

(i)

Rape; or

(ii)

robbery with aggravating circumstances; or

(d)

the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common G purpose or conspiracy.

Rape -

(a)

when committed -

(i)

in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice;

(ii)

by more than one person, where such persons acted in the H execution of furtherance or a common purpose or conspiracy;

(iii)

by a person who has been convicted of two or more offences of rape, but has not yet been sentenced in respect of such convictions; or

(iv)

by a person, knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency virus;

(b)

where the victim - I

(i)

is a girl under the age of 16 years;

(ii)

is a physically disabled woman who, due to her physical disability, is rendered particularly vulnerable; or

(iii)

is a mentally ill woman as contemplated in section 1 of the Mental Health Act 18 of 1973; or

(c)

involving the infliction of grievous bodily harm. J

Marais JA

PART II

Murder in circumstances other than those referred to in Part I. A

Robbery -

(a)

when there are aggravating circumstances; or

(b)

involving the taking of a motor vehicle.

Any offence referred to in s 13(f) of the Drugs and Drug Trafficking Act 140 of 1992. If it is proved that - B

(a)

the value of the dependence producing substance in question is more than R50 000;

(b)

the value of the dependence-producing substance in question is more than R10 000 and that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution of furtherance of a common purpose or conspiracy; or C

(c)

the offence was committed by any law enforcement officer.

Any offence relating to -

(a)

the dealing in or smuggling of ammunition, firearms, explosives or armament; or

(b...