S v Mpetha

• Jurisdiction: South Africa
• Citation: 1985 (3) SA 702 (A)

S v Mpetha
1985 (3) SA 702 (A)

1985 (3) SA p702

Citation	1985 (3) SA 702 (A)
Court	Appellate Division
Judge	Corbett JA, Kotzé JA, Van Heerden JA, Hefer JA and Galgut AJA
Heard	March 25, 1985
Judgment	May 30, 1985

Flynote: Sleutelwoorde G

Criminal law — Terrorism Act 83 of 1967 — Contravention of s 2 (1) (a) — Effect of repeal of Act by Internal Security Act 74 of 1982 — New Act not merely re-enacting or H even substantially re-enacting s 2 of old Act and not according retroactive effect to penal provisions of s 54 (1) of new Act — Effect of s 12 (2) (d) of Interpretation Act 33 of 1957 not giving Court discretion to impose lesser sentence than mandatory minimum prescribed in s 2 (1) (a).

Headnote: Kopnota

In an appeal against a sentence of five years' imprisonment I imposed in a Provincial Division for a contravention of s 2 (1) (a) of the Terrorism Act 83 of 1967 ("the old Act"), the appellant contended that the Court a quo was not obliged to impose the mandatory minimum sentence of five years' imprisonment and that a suspended sentence would have been a fitting sentence in all the circumstances. Counsel for the appellant contended that the provisions of the Internal Security Act 74 of 1982 ("the new Act") which repealed the old J Act and came into effect before the appellant was convicted, substantially re-enacted s 2 (1) (a) of the old Act in regard to the offence of

1985 (3) SA p703

participation in terroristic activities; that the new Act did A not repeal the offence but merely amended it as well as the sentence to be imposed and in these circumstances the new Act was retroactive and the mandatory minimum sentence fell away. It was furthermore contended that s 12 (2) (d) of the Interpretation Act 33 of 1957 gave the Court a discretion to impose a sentence less than the mandatory minimum.

Held, per VAN HEERDEN JA, CORBETT JA and HEFER JA concurring (KOTZÉ JA and GALGUT AJA dissenting), that the new Act did not B merely re-enact or substantially re-enact s 2 of the old Act; there were drastic differences between the provisions of the one and those of the other: the new Act did not accord retroactive effect to merely the penal provisions of s 54 (1) of the new Act.

Held, further, that the effect of s 12 (2) (d) of the Interpretation Act was that the Court was still obliged to C impose the mandatory minimum sentence: the use of the word "may" did not confer a discretion on the Court.

Held, further, that the introductory phrase to s 12 (2), "unless the contrary intention appears", did not mean that the proviso to s 2 (1) which contained the mandatory sentence was no longer applicable: although there was a recognition in the new Act of the undesirability of compulsory sentences, an intention could not be deduced that the proviso had to be D regarded as pro non scripto.

Held, accordingly, that the appeal had to be dismissed.

Case Information

Appeal against a sentence imposed for a contravention of the Terrorism Act 83 of 1967 in the Cape Provincial Division (WILLIAMSON J). The facts appear from the judgment of GALGUT AJA.

I G Farlam SC (with him J R Whitehead) for the appellant: The E trial Court correctly had regard to the Commission's Report in order to ascertain the mischief at which the Act 74 of 1982 was aimed. See Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG1975 AC 591 ([1975] 1 All ER 810 (HL)); Hewlett v Minister of Finance and Another 1982 (1) SA at F 496H; Rand Bank Ltd v De Jager 1982 (3) SA at 443E. The mischiefs outlined by the Commission's Report were: (a) The multiplicity of laws relating to security and the need for some measure of consolidation. Commission Report paras 5.2, 5.4, 8.1.1 - 8.1.3. (b) The undesirability of interfering with the Court's discretion in regard to punishment by the provision of G compulsory minimum sentences. Commission Report paras 5.13.13, 8.4.6.1 - 8.4.6.3. The trial Court correctly held that, if the Legislature had combated mischief (b) above - the provision for a compulsory minimum sentence of five years' imprisonment - by amending s 2 (1) of Act 83 of 1967 by the deletion of the proviso thereto, then it would not have been obliged to impose the minimum sentence, although the trial commenced H before Act 74 of 1982 came into effect on 2 July 1982. See S v Ndlovu1978 (3) SA 829; S v Thusi en 'n Ander1978 (4) SA 251; S v Innes1979 (1) SA 783; S v Williams 1979 (3) SA 1270. The fact that, because of the mischief referred to in (a) above, the Legislature did away with compulsory minimum sentences by repealing and re-enacting, with modifications, the former I Terrorism Act cannot alter the fact that it was intended to do away with such sentences. The trial Court erred in finding that in the strict sense the repeal of the Terrorism Act of 1967 by the Internal Security Act of 1982 did not amount in effect to an amendment of, nor an affirmance and continuance of the former statute in uninterrupted form. See D v Minister of the Interior 1962 (1) SA at 658D, 658H - 659A; Nkomo and Others v J Minister of Justice and

1985 (3) SA p704

A Others 1965 (1) SA at 505F; Ex parte Glavonic 1967 (4) SA at 142H - 143A. The object of the Internal Security Act is to provide for the security of the State and the maintenance of law and order. Where a statute is simultaneously repealed and re-enacted in a modified form, one is not concerned with a repeal in the strict sense but with what amounts, in substance, B to an amendment. See Du Plessis v Raubenheimer 1917 OPD at 111; R v Morris 1931 OPD at 97; R v Commercial General Agency Co Ltd and Another 1944 TPD at 417; Ex parte Todd; in re Ashcroft(1887) 19 QBD 186 (56 LJQB 431 (CA)); Beaumont v Yeomans (1934) 34 SR (NSW) at 569 - 570; Mathieson v Burton (1971) 45 ALJR 147 (HC) at 154 - 5; Trans-Canada Insurance Co C v Winter (1935) 1 DLR 272 (SC); Campbell v The King (1949) 95 CCC 63 (PEISC); Re Green (1936) 65 CCC at 355; where the principle was stated by CHISHOLM CJ. In that case the Court referred to the United States decisions cited in 59 Corpus Juris at 927: see now 82 Corpus Juris Secundum at 505 - 6. In Canada the position is now governed by s 36 (f) of the D Interpretation Act 1967 - 8 c 7. This provision is declaratory of the common law as is s 36 (e) of the Act, which directly relates to a case such as the present appeal. Clearly it would be unrealistic to expect Parliament, when repealing and re-enacting legislation in modified form, to cater for cases which commenced before the new statute came into effect. Alternatively, if it is held that s 2 of the former Terrorism E Act was repealed in the strict sense, then s 12 (2) of the Interpretation Act 33 of 1957 is applicable. The trial Court accordingly erred in holding the use of the word "may" did not give it a discretion to impose the compulsory sentence prescribed in the former Terrorism Act but that it was not obliged to do so. Cf R v Hlongwane1956 (4) SA 150; R v Booysen F 1958 (4) SA 359; R v Cupido1961 (1) SA 200; and see s 10 of Act 5 of 1883 (Cape). Thus, if a statute which provides for a minimum penalty of R500 and a maximum penalty of R1 000 is repealed and replaced by a statute providing for a minimum penalty of R300, an accused who is convicted after the repeal of an offence under the repealed statute (committed before the G repeal) may, but need not, be sentenced to a fine of R500. An appropriate sentence for the appellant would have been a period of imprisonment totally suspended as indicated by the trial Court for the following reasons: (a) his age (see S v Heller 1971 (2) SA at 55D; S v Zinn1969 (2) SA 537; S v Du Toit1979 (3) SA 846; Du Toit Straf in Suid-Afrika at 59 and 268 - 9; H (b) his poor health (see S v Berliner1967 (2) SA 193; S v Du Toit 1979 (3) SA at 858E - F; Du Toit (op cit at 59 and 269)); (c) his life expectancy (see S v Berliner (ubi supra); Du Toit (op cit at 60); (d) the circumstances prevailing when the offence was committed; (e) the nature of his participation in the offence (see S v Chaka 1978 (2) SA at 67 - 8. In this regard there is nothing to show that the accused's actions in I fact contributed to the tragic events at Klipfontein Road and elsewhere); (f) the fact that he was in detention from August 1980 to June 1983, ie for 34 months before and during his trial. (See S v Hawthorne en 'n Ander 1980 (1) SA 421; Du Toit (op cit at 273).)

J Slabbert for the respondent: The following are examples where during the trial of an accused a mandatory sentence has been repealed, resulting in a lesser sentence being imposed on J appeal: S v Innes1979 (1) SA 783; S v Williams1979 (3) SA 1270; S v Thekiso1978 (4) SA 646

1985 (3) SA p705

(where the mandatory sentences of five years imprisonment in A respect of dealing in dagga were set aside); S v Thusi1978 (4) SA 251; S v Ndlovu 1978 (3) SA 829 (where sentences of two years imprisonment imposed in terms of the Dangerous Weapons Act were set aside.) R v Sillas 1959 (4) SA 305 (where a mandatory declaration that the accused was an habitual criminal B was set aside and altered to six years imprisonment.) The accused in these cases were given the benefit of the reduced sentences usually on the grounds of public policy and fairness. The amendments which redounded to the respective accuseds' benefits repealed only the sentences and did not repeal the offences. However, a similar comparison of Act 83 of 1967 (hereinafter referred to as the "old Act") with Act 74 of 1982 (hereinafter referred to as the "new Act") shows substantial C changes not only in the offence but also in the sentences. There has not been a re-enactment of substantially the same statutory provisions and neither is there sufficient similarity between them to say that the new Act is "an affirmance and continuance" of the former Act. See Re Green...