S v Montgomery

• Jurisdiction: South Africa
• Judge: Hurt J et Jappie J
• Judgment Date: 18 April 2000
• Citation: 2000 (2) SACR 318 (N)
• Hearing Date: 25 January 2000
• Court: Natal Provincial Division

Hurt et Jappie JJ:

The appellant was correctly convicted in the regional court, Durban, of robbery with aggravating circumstances. The offence having been committed on 23 May 1998, after the provisions of s 51 of the Criminal Law Amendment Act 105 of 1997 ('the Act'), came into effect, the learned magistrate applied those provisions in considering the question of sentence. After referring briefly to the gist of s 51(3) the learned H magistrate said the following:

'In my view, having regard to the manner in which this robbery was committed, namely that the three of you took on the complainant who was by himself and robbed him of his watch and his money, threatened him with a knife and also in view of the fact that you have I admitted a previous conviction in that on 10 June 1996 you were convicted of assault and you were sentenced to 12 months' correctional supervision and also community service, leads me to conclude that you are a person from whom the community must be protected. You have, as was submitted correctly, in my view, by Ms Dulai on behalf of the State, no respect for other persons' property or their persons. The sentence which you received for J

Hurt et Jappie JJ

A assault obviously did not have the desired effect and in my view there are no substantial or compelling circumstances which justify the imposition of a lesser sentence on you.'

The sentence imposed was one of 15 years' imprisonment, ie the minimum sentence prescribed by s 51(2)(a)(i) for the offence of robbery with aggravating circumstances. The learned magistrate's reference to 'substantial and B compelling circumstances' was, of course, a reference to the provisions of s 51(3) of the Act. Section 51(3)(a) reads as follows:

'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 C proceedings and may thereupon impose such lesser sentence.'

The appellant has appealed against the sentence.

In the comparatively short time since the Act took effect there have, perhaps understandably, been a number of D judgments dealing with the manner in which s 51 is to be applied and, more particularly, with the question of what the Legislature intended to convey by the expression 'subtantial and compelling circumstances'. For the purpose of this judgment it is not necessary, in our view, to analyse the ratios of the various judgments to which we have been referred. What is perfectly plain, and is at least a common denominator in all of the judgments to E which we have been referred, is that there is no purpose to be served in endeavouring to construct an exhaustive definition of what constitute the 'substantial and compelling circumstances' which the Legislature had in mind. Provisions such as that contained in s 51(3) are plainly there to leave the Court with an all-important discretion F and it is, in general, undesirable to fetter that discretion by attempting to define (and therefore limit) the ambit of such a discretion.

What seems to be at the core of the differences of opinion reflected in the various judgments to which we have been referred, however, is the question of when the provisions of s 51(3) are to be invoked.

G Thus in certain of the judgments (following the approach indicated by Stegmann J in S v Mofokeng and Another1999 (1) SACR 502 (W)) the view has been expressed that factors which were commonly regarded as 'mitigating circumstances' are not to be treated as 'substantial and compelling circumstances'. In the Mofokeng case, Stegmann J said the following (at 522j-523d):

H 'In my view, it would not be proper to conclude that the mere fact that the severity of the sentence prescribed by Parliament exceeds the severity of the sentence, that, but for Parliament's intervention, the Court would itself have regarded as appropriate having regard to the criteria usually applied by the courts, may be regarded as a "substantial and compelling circumstance'' justifying a departure I from the sentence prescribed by Parliament. To take that approach would simply be to emasculate the legislation. For a court to take advantage of s 51(3)(a) merely to prefer its own judgment in the matter of sentence, to the sentence prescribed by Parliament would, in my view, compromise the integrity of the court.

Therefore, I consider it to be clear enough that, for "substantial and compelling circumstances'' to be found, the facts of the particular J case must present some

Hurt et Jappie JJ

circumstance that is so exceptional in its nature, and that so obviously exposes the injustice of the statutorily prescribed sentence in A the particular case, that it...