Sentencing

• Citation: 2021/2022 YSAL 1175
• Published date: 14 April 2023
• Pages: 1175-1207
• Author: le Roux-Kemp, A.
• Date: 14 April 2023

1175

1. INTRODUCTION

No relevant legislation was promulgated during the year under rev iew. A

wide and varied range of sentencing ca ses came before the courts, the most

pertinent of which are con sidered below. It is noteworthy that most of the

important sentencing c ases for the year under review are not concer ned

with substantive sentencing pri nciples, but rather relate to the sentencing

process or procedure, or the legal-techn ical interpretation of legislat ive

sentencing provisions. On ly the most important of these cases are di scussed

here. However, regard can also be had to S v Killian1 dealing with s 297 of the

Criminal Pro cedure Act2 and the conditions of a suspended sentence, which

is also the topic of discu ssion in section 3.1 below, as well as the Constitutional

Court’s judgment in S v Senwedi3 confirm ing the non-retrospectivity of non-

parole periods in terms of s 276B of the Criminal Procedure Act, which i s

discussed wit h reference to other case law in section 3.3 below. Finally, with

regard to the identification and con sideration of substantial and compelling

circumsta nces justifyi ng a deviation from the prescri bed minimum

sentences as set out in s 51 of the Crim inal Law Amendment Act4 and whic h

are discusse d in section 3.5 below, the following cases heard duri ng the

period under review should be considered: Motaung v S,5 Mothokgo v S,6

Modikeng v S7 and Danga v S.8

* BA LLB LLD (Stell) CML BMus Hons BMus (SA); Associate Professor, University of

Lincoln (UK). ORCID: https://orcid.org/0000-0001-7186-7662.

1 2021 (2) SACR 371 (WCC).

2 51 of 1977.

3 2022 (1) SACR 229 (CC).

4 105 of 1977.

5 [2022] ZAFSHC 16.

6 [2022] ZAFSHC 35.

7 [2022] ZAFSHC 80.

8 [2022] ZAGPPHC 4.

SentencingSentencing

Andra le Roux-Kemp*

2021/2022 YSAL 1175

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YeArbooK oF south AFrICAN LAW

1176

2. LEGISLATION

No relevant legislation was promulgated during the period u nder review.

3. CASES

3.1 SUSPENDED SENTENCES IN TERMS OF S 297 OF THE

CRIMINAL PROCEDURE ACT 51 OF 1977

Section 297 of the Crimi nal Procedure Act provides for the conditional or

unconditional postponeme nt or suspension of a sentence, as well as for

caution and reprimand. With regard to suspe nded sentences specifica lly,

s 297(1)(b) states that a court may, when it convicts a person of any offence

other than an offenc e in respect of which any law prescr ibes a mini mum

punishment, order that the operation of the whole or any part of t he

sentence imposed be suspended for a per iod not exceeding five years on

any condition referred to in s 297(1)(a)(i) of the Act. These conditions i nclude:

(a) (i) on one or more conditions, whether as to —

(aa) compensation;

(bb) the rendering to the per son aggrieved of some specif ic benefit or

service in lieu of co mpensation for damage or pecuni ary loss;

(cc) the performance wit hout remuneration and outside the pri son

of some service for the be nefit of the communit y under the

supervision or control of a n organisation or inst itution which, or

person who, in the opinion of t he court, promotes the interests

of the community (in t his section r eferred to as commun ity

service);

(ccA) submission to correctional sup ervision;

(dd) submission to instruction or t reatment;

(ee) submission to the super vision or control (including co ntrol

over the earning s or other income of the person concerned) of a

probation officer as defi ned in the Probation Services Act, 1991

(Act 116 of 1991);

(ff) the compulsory atte ndance or residence at some specif ied centre

for a specified pur pose;

(gg) good condu ct;

(hh) any other matter,

and order such person to appea r before the court at the expiration of

the relevant period; or

(ii) uncond itionally, and order such person to appea r before the

court, if called upon b efore the expiration of the relevant period …

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seNteNCING 1177

In S v Martin,9 Lekhuleni J held t hat a suspended sentence must be fai r and

reasonable and not too onerous for the accuse d. It must also comply with the

right to a fair trial e nshrined in s 35(3) of the Constitution of the Republic of

South Africa, 1996.10 Section 297(1) of the Crimin al Procedure Act, dealing

with suspended sentences, must therefore be i nterpreted with reference to

s 35 of the Constitution and also s 39(2), which requires the courts to

interpret legislation purp osively to promote the spirit, purport and objects

of the Bill of Rights.11 From this persp ective, Lekhuleni J interpreted s 297 of

the Crimina l Procedure Act as follows:

It is trite law that a suspended s entence has two benef icial effects.

First, the primar y aim of a suspended se ntence with a negative

condition, that is, a condition t hat requires the offender not to repeat

the crimes spe cified, is to keep t he convicted person out of pris on

and avoid the deleterious effec ts of direct impri sonment. The second

objective is to deter th e offender from commit ting simil ar offences,

in that the suspe nded sentence hangs over the of fender’s head and,

if he behaves, he will not have to ser ve it. … the offences which are

set as conditions t hat an accused may not commit, without him b eing

exposed to the putt ing into operation of the su spended sentence,

must be fair and reas onable and must not be wider tha n the offence

of which the accuse d has been convicted. A derogat ion from this

well-established pr inciple in my view offends agai nst the accuse d’s

right to a fair tri al enshrine d in s 35(3) of the Constitutio n. … The

condition for suspendi ng a sentence must be fair, just and reasona ble.

In other words, it must be couched in suc h a way that it does not cause

unfairne ss or injustice to the accused. … T he condition of suspension

must be related to the offence i n question and must not be too wide,

to the extent that it has no con nection with the offence concer ned.12

The accused in S v Martin was convic ted of shoplifting, in t hat he

intentionally stole a pack of sirloin steak to the value of R1 112,93.13 The

trial court sentence d the accused to a fine of R4 000 or four months’

imprisonment, suspended for a period of four month s on condition that the

accused was not found guilt y of theft, attempted theft, fraud, robbery and

contravening s 36 and s 37 of the General Law Amendment Act14 du ring the

period of suspension. Thi s reference to a four-month suspension appears

twice in the cour t a quo’s judgment, and in a part marked ‘Annexure B’ the

9 2022 (1) SACR 421 (WCC).

10 Para 7.

11 Para 9.

12 Paras 10–12.

13 Para 1.

14 62 of 1955.

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