S v Mpetha
Jurisdiction | South Africa |
Judge | Corbett JA, Kotzé JA, Van Heerden JA, Hefer JA and Galgut AJA |
Judgment Date | 30 May 1985 |
Citation | 1985 (3) SA 702 (A) |
Hearing Date | 25 March 1985 |
Court | Appellate Division |
Corbett JA:
In this matter I concur in the judgment of VAN HEERDEN JA and in the order that the appeal be dismissed. I do so with regret for this case illustrates the injustice which D can flow from a statutory enactment which lays down a compulsory minimum sentence and takes away from the trial Judge the discretion which he normally enjoys in the imposition of sentence. In this case the trial Judge, having held that he was "driven to the conclusion" that he had no discretion to impose a sentence of less than five years' imprisonment, stated with reference to the appellant:
E "He is 74 years of age and is very ill. Dr Disler has described in detail the seriousness of his condition which flows from diabetes and its complications. He must shortly undergo an amputation of the left leg because of gangrene. His expectation of life is very limited and is unlikely to be more than a couple of years at best. Even given the best of medical treatment it is clear that he has not long to live. Although what he did is undeniably serious, I think that justice does F not require that he be imprisoned. The end of his life is too near for such punishment to be of any benefit either to him or to society. Because of his very special circumstances compassion should, in my view, be the overriding consideration. If it were in my power to do so the sentence of imprisonment which I would have imposed would have been totally suspended."
In the result, the trial Judge, imposed the minimum sentence of G five years' imprisonment. The difference between this sentence and a wholly suspended sentence is manifest.
Although there is a difference of opinion in this Court as to whether or not the compulsory minimum sentence provided for in s 2 (1) of the Terrorism Act 83 of 1967 was applicable in this case, it is the considered view of all the members of this H Court that such a minimum sentence is wholly inappropriate as far as the appellant is concerned and that a wholly suspended sentence would have been the proper punishment.
In the circumstances I echo the hope expressed by my Brother VAN HEERDEN that appellant's sentence will be ameliorated by I administrative action.
HEFER JA concurred in the judgment of CORBETT JA.
Judgment
Van Heerden JA:
I am unfortunately unable to agree with the approach of my Brother GALGUT in regard to the provisions of s 12 (2) of the Interpretation Act 33 of 1957. In my view there J does not appear from the Internal Security Act 74 of 1982 (the new Act) an intention that the
Van Heerden JA
proviso to s 2 (1) of the Terrorism Act 83 of 1967 (the old A Act) should not apply in respect of contraventions of that section committed prior to the repeal of the old Act.
I agree that the principle enunciated in cases such as R v Commercial General Agency Co Ltd and Another 1944 TPD 413 at 417 and S v Innes 1979 (1) SA 783 (C) does not assist the B appellant. The new Act did not merely re-enact, nor did it substantially re-enact, s 2 of the old Act. There are indeed drastic differences between the provisions of that section and those of s 54 of the new Act defining the offence(s) of terrorism. It suffices to point out that s 2 (1) (a) covered any act endangering the maintenance of law and order in the Republic, whilst s 54 (1) introduces the concept of violence in C regard to the objects specified in paras (a) to (d). Moreover, s 2 did not clearly distinguish between the elements of the crime and the onus which was placed on the accused. Indeed, if an accused was charged with a contravention of ss (1) (a) and it was proved that he had committed the act alleged in the charge which had or was likely to have had any of a D number of results, he was presumed to have committed the act with intent to endanger the maintenance of law and order unless he proved beyond reasonable doubt, not that he did not entertain that intention, but that he did not intend any of those results (13 in number). By contrast s 54 (1) of the new Act clearly sets out the act and the intent which are elements E of the offence of terrorism, whilst s 69 (5) and (6) merely require proof on a balance of probabilities that the accused did not intend to commit any of the acts contemplated in s 54 (1) (i) to (iv) in order to achieve any of the objects specified in subparas (a) to (d).
But wide as s 2 of the old Act was, it may well be that acts which would not have constituted terroristic activities under F that section are offences in terms of s 54 (1) of the new Act. Thus, depending on the circumstances, the commission of an act of violence with intent to achieve an industrial or economic aim (which is an offence under s 54 (1)) may not have been punishable under s 2.
The appellant was convicted under s 2 subsequent to the repeal of the old Act and it has rightly not been suggested that the G crime-defining provisions of that section were retrospectively replaced by s 54 (1) of the new Act. Nor could the evidential provisions of s 69 (5) and (6) of the latter Act have so replaced the injunctions in regard to the burden of proof which were interwoven with the more substantive provisions of s 2 of the old Act. That being so, I do not think that the new Act H discloses an intention to accord retroactive effect to merely the penal provisions of s 54 (1) which are applicable to an offence so different from that constituted by s 2 of the old Act.
It is true that in R v Mazibuko 1958 (4) SA 353 (A) at 357 STEYN JA, with reference to the presumption against I retrospectivity, said that where a statute reduces an existing penalty different considerations may apply. See also R v Sillas 1959 (4) SA 305 (A) at 309. It should be observed, however, that in both cases this Court was concerned with amendments to the penal provisions of an existing Act which had not been repealed. "Different considerations" do, of course, apply when new legislation ameliorates a penalty but does not (whether an J amendment or a repeal is
Van Heerden JA
A involved) substantially alter the provisions establishing the offence in question, and I have little doubt that the remarks of STEYN JA and SCHREINER JA were intended to relate to such a case.
In passing I should mention that the relevant mischiefs which the new Act was intended to remedy (ie the wide ambit of s 2 of B the old Act, the compulsory minimum sentence and the placing of an onus beyond reasonable doubt on an accused) are in my view self-evident. I would therefore prefer to leave open the question to what extent, if at all, it is permissible to have regard to the report of the Commission of Inquiry into Security Legislation.
I turn to s 12 (2) of the Interpretation Act. Counsel for the C appellant submitted that because of the use of the word "may" in the concluding phrase of that subsection the Court a quo was not obliged to impose a sentence of not less than five years' imprisonment on the appellant. In other words, although s 2 of the old Act was still applicable to the offence committed by D the appellant, the Court had a discretion whether or not to invoke its penal provisions.
Unless a contrary intention appears, the repeal of a law does not, in terms of s 12 (2) (d) of the Interpretation Act, affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the repealed law. In Mazibuko's E case STEYN JA pointed out that liability for a penalty accrues when the crime is committed and not only when the accused is convicted. He said (at 357):
"Hoewel ons strafwette veelal lui dat die oortreder by skuldigbevinding binne die perke van 'n aangewese maksimum strafbaar sal wees, is dit nie die skuldigbevinding nie maar die misdryf waaruit bedoelde strafbaarheid ontstaan. Sodra die misdryf gepleeg is, is die dader aanspreeklik nie slegs vir die F sivielregtelike gevolge van sy daad nie maar ook vir die strafregtelike. Hy word onmiddellik aanspreeklik vir 'n straf binne die perke van die strafsoort of strafsoorte waarmee sy daad alsdan beteuel word.... Dat die Hof die straf wat ondergaan moet word eers later na skuldigbevinding bepaal, doen niks daaraan af dat die aanspreeklikheid vir straf, net soos die reg van vervolging met die oog op bestraffing, tevore reeds bestaan nie. Die totstandkoming van so 'n aanspreeklikheid by die pleeg van die misdaad, word ook veronderstel in art 12 (2) G (d) van die Interpretasiewet 1957, waarvolgens die herroeping van 'n Wet nie die oplegging van 'n straf uitsluit nie wat 'opgeloop is ten opsigte van enige misdryf' ingevolge die herroepe Wet."
It follows that in regard to an offence committed prior to the repeal of a statute, s 12 (2) (d) was designed to keep alive the penal provisions of the repealed Act. If, eg, a forfeiture H was compulsory, it must be decreed even if the accused is found guilty subsequent to the repeal of the Act providing for the forfeiture.
That being the meaning and effect of para (d), the concluding phrase of s 12 (2) "and any such penalty forfeiture or punishment may be imposed, as if the repealing law had not been I passed", is really tautologous and was presumably added in order to leave no doubt as to the Legislature's intention. If the word "may" was intended to confer a discretion where none existed prior to the repeal, there would be an unacceptable conflict between para (d) and the concluding phrase. It has to be borne in mind that only in exceptional circumstances are compulsory sentences enjoined by statute. As a general rule a J Court is free to impose a discretionary sentence not exceeding a prescribed maximum.
Van Heerden JA
Moreover, unless a law provides for a minimum punishment, a A Court may in terms of s 297 of the Criminal Procedure Act 51 of 1977 inter alia postpone the passing of sentence or discharge the accused with a caution and a reprimand. Hence, the use of the word "shall" instead of "may" in the...
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