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N v H
In the matters between:
139/89
IVAN
PETER TOMS Appellant
and
THE STATE Respondent
and
289/89
ROBERT
DAVID BRUCE Appellant
and
STEM STATE Respondent
SMALBERGER, JA -
/N v H IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matters between:
139/89
IVAN PETER
TOMS Appellant
and
THE STATE Respondent
and
289/89
ROBERT DAVID BRUCE
Appellant
and
THE STATE Respcndent
CORAM: CORBETT, CJ, BOTHA, SMALBERGER,
KUMLEBEN, JJA, et NICHOLAS, AJA
HEARD: 27 FEBRUARY 1990
DELIVERED: 30 MARCH 1990
JUDGMENT
/2
2 SMALBERGER,JA
This judgment concerns two appeals, those of
Ivan Peter Toms ("Toms") and Robert David Bruce
("Bruce"). They were heard together for the sake of
convenience. Both appeals turn upon the proper
interpretation of s 126 A(l)(a) of the Defence Act 44
of 1957 ("the Act"). The subsection reads:
"(1) Any person liable to render service in terms of section 22 or 44 who when called up -
(a) refuses to render such service in the South African Defence Force, shall be guilty of an offence and liable " on conviction to imprisonment for a period one-and-a-half times as long as the aggregate of the maximum of all periods of service mentioned in section 22(3) or 44(3), as the case may be, during which he could otherwise, in terms of those sections, still have been compelled to render service, or for a period of 18 months, whichever is the longer...."
/3
3
Toms was convicted on 1 March 1988 in the Regional Court at Wynberg of contravening the provisions of the above section. He is a medical doctor, having completed his studies at the University of Cape Town in 1976. At the time of his trial he was engaged full time in community health work in the Black townships of Khayelitsha and New Crossroads. He had some years previously completed his basic military training and had risen to the rank of first lieutenant. His conviction arose from his steadfast refusal to render any further periods of service on the grounds of conscience. Considerable evidence was led in mitigation of sentence. The presiding magistrate held, however, that he had no discretion in regard to sentence. Applying what he conceived to be the mandatory provisions of s 126 A(l)(a) he sentenced Toms to imprisonment for a period of 630 days. An appeal
/4
4
to the Cape of Good Hope Provincial Division was noted.
That court, on 17 November 1988, upheld the
magistrate's finding that the sentence to which Toms
was liable was a mandatory one. It held further that
no portion of the sentence could be suspended. It found, however, that the outstanding period of service
Toms was still compelled to render under the Act had
been miscalculated. The upshot was a reduction of
Toms' sentence to one of 18 months' imprisonment.
Leave to appeal was granted to this Court. At about
the same time Toms was released on bail pending the
hearing of the appeal. By that time he had served
just more than 9 months of his sentence. The judgment
of the court a quo is reported in 1989(2) SA 567 (C).
Bruce was convicted on 20 July 1988 in the
Magistrate's Court, Johannesburg, of the same offence
as Toms. He had graduated at the end of 1987 with a
/5
5 BA degree from the University of Witwatersrand. He had refused to do his basic period of training on the grounds of conscience. The presiding magistrate arrived at the same conclusion as his counterpart in the Toms case, and applying the formula laid down in s 126 A(l)(a) sentenced Bruce to 6 years imprisonment. Bruce appealed to the Witwatersrand Local Division. That Court upheld the magistrate's finding that the section provided for the imposition of a mandatory sentence, and that no portion thereof could be suspended. It found, however, that there had been an error in the computation of Bruce's sentence in accordance with the provisions of the section, and reduced the sentence from 6 years to 2176 days. It too granted leave to appeal to this Court. Bruce is currently serving the sentence imposed upon him.
/6
6 The issues in the present appeal are two-fold: (1) does s 126 A(l)(a) provide for a mandatory sentence on conviction and, if so, (2) is the court competent to suspend the whole or portion of such sentence? The answers to these questions lie in the proper interpretation of the relevant provisions of the Act. Before considering those provisions, and the principles of interpretation which govern their meaning, it would be appropriate to stress certain f.undamental principles of which cognisance must be taken when assessing the respective contentions of the parties - that the provisions of s 126 A(l)(a) preserve a judicial discretion in relation to sentence on the one hand, and that they prescribe a mandatory sentence on the other.
The first principle is that the infliction of punishment is pre-eminently a matter for the discretion of the trial court (cf. R v Mapumulo and Others 1920
/7
7 AD 56 at 57). That courts should, as far as possible, have an unfettered discretion in relation to sentence is a cherished principle which calls for constant recognition. Such a discretion permits of balanced and fair sentencing, which is a hallmark of enlightened criminal justice. The second, and somewhat related principle, is that of the individualization of punishment, which requires proper consideration of the individual circumstances of each accused person. This
principle too is firmly entrenched in our law (S v
Rabie 1975(4) SA 855 (A) at 861 D; S v Scheepers 1977(2) SA 154 (A) at 158 F - G).
A mandatory sentence runs counter to these principles. (I use the term "mandatory sentence" in the sense of a sentence prescribed by the legislature which leaves the court with no discretion at all -
/8
8
either in respect of the kind of sentence to be imposed
or, in the case of imprisonment, the period thereof.)
It reduces the court's normal sentencing function to
the level of a rubber stamp. It negates the ideal of
individualization. The morally just and the morally
reprehensible are treated alike. Extenuating and
aggravating factors both count for nothing. No
consideration, no matter how valid or compelling, can
affect the question of sentence. As HOLMES, JA,
pointed out in S v Gibson 1974(4) SA 478 (A) at 482 A,
a mandatory sentence
"unduly puts all the emphasis on the punitive and deterrent factors of sentence, and precludes the traditional consideration of subjective factors relating to the convicted person".
Harsh and inequitable results inevitably flow from
such a situation. Consequently judicial policy is
opposed to mandatory sentences (cf. S v Mpetha 1985(3)
/9
9 SA 702 (A) at 710 E), as they are detrimental to the proper administration of justice and the image and standing of the courts.
The legislature must be presumed to be aware of these principles, and would normally have regard to them. There is a strong presumption against legislatiye interference with the Court's jurisdiction - see Lenz Township Co (Pty) Ltd v Lorentz N O en Andere 1961(2) SA 450 (A) at 455 B, Although this was said in Lenz's case in a somewhat different context, the principle would apply equally to the court's jurisdiction in relation to the matter of sentence. By the same token the legislature must be presumed not to intend its enactments to have harsh and inequitable results (cf. S v Moroney 1978(4) SA 389 (A) at 405 C -D). The legislature is of course at liberty to
/10
10
subjugate these principles to its sovereign will and decree a mandatory sentence which the courts in turn will be obliged to impose. To do so, however, the legislature must express itself in clear and unmistakable terms (S v Nel 1987(4) SA 950 (W) at 961 B). Courts will not be astute to find that a mandatory sentence has been prescribed. This, however, does not mean that they will disregard relevant
principles of statutory interpretation. The warning
echoed in Principal Immigration Officer v Bhula 1931 AD 323 at 336 (quoting from Maxwell : 3rd Ed p 299) that "a sense of the possible injustice of an interpretation ought not to induce judges to do violence to well-settled rules of construction" must not go unheeded.
The primary rule in the construction of statutory provisions is to ascertain the intention of the legislature. One does so by attributing to the
/11
11
words of a statute their ordinary, literal, grammatical meaning. Where the language of a statute, so viewed, is clear and unambiguous effect must be given thereto, unless to do so "would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it would lead to a result contrary to the intention of the legislature, as shown by the context or by such other considerations as the
Court is justified in taking into account " (per
INNES, CJ, in Venter v R 1907 TS 910 at 915). (See also Shenker v The Master and Another 1936 AD 136 at 142; Summit Industrial Corporation v Claimants Against the Fund Comprising the Proceeds of the Sale of the MV Jade Transporter 1987(2) SA 583 (A) at 596 G - H.) The words used in an Act must therefore be viewed in the broader context of such Act as a whole (STEYN: Die Uitleg van Wette : 5th Ed, p 137; Jaga v Donges NO and
/12
12 Another 1950(4) SA 653 (A) at 662 G). When the language of a statute is not clear and unambiguous one may resort to other canons of construction in order to determine the legislature's intention. One such is that in the case of penal provisions a strict construction is applicable (Steyn op cit at 111-112). The construction of criminal and penál statutes was discussed in R v Milne and Erleigh (7) 1951(1) SA 791 (A) at 823 B - E, in which was adopted the general rule of construction recognised in England (see Remmington v Larchin 1921(3) KB 404 (CA) at 408) that when dealing with a penal section, if there are two reasonably possible meanings, the court should adopt the more lenient one.
The Act, according to its preamble, provides for the defence of the Republic and for matters incidental thereto. It makes provision, inter alia,
/13
13 for the conscription or compulsory service in its
armed forces of male citizens between the ages of 18 and 65. The South African Defence Force consists of the Permanent Force, the Citizen Force and the Commandos. Every male citizen of prescribed age must, at the times fixed by the Act, apply for registration and, unless exempted from military service cm one or other of the very limited grounds recognised by the Act, he is allotted to either the Citizen Force or the Commandos, and required to render service or undergo training therein.
Service in the Citizen Force is regulated by s 22 of the Act; service in the Commandos by s 44. Section 22(4) provides for liability to serve over a period of 14 years from the date of commencement of service or training. Section 22(3) provides that service shall be completed in:
/14
14
"(a) a first period of service not exceeding 24 months; (b) subsequent periods of service during six cycles of two years each of which none shall exceed 90 days and which shall per cycle not exceed 120 days in the aggregate."
Any male citizen who refuses to render service or fails
to report therefor becomes liable to the penalties
prescribed by s 126 A(l) which provides the teeth to
ensure the effectiveness of the system of compulsory
military service. From the proyisionsof the Act it
can safely be assumed that one of the objects of the
Act is to compel male citizens (between the prescribed
ages) to perform military service.
The Act recognises what it terms "religious
objectors", who must fall into one of thrée carefully
defined classes. Depending on their respective
classifications, religious objectors are required to
render service or undergo training in a non-combatant
/15
15
capacity in the Defence Force; or to render service by
performing prescribed maintenance tasks of a non-
combatant nature; or to render "community service" as
laid down in the Act. No provision is made in the
Act for respecting the position of "conscientious
objectors" other than those classified as religious
objectors. A conscientious objector has been defined
as
"One who opposes bearing arms or who objects
to any type of military training and service. Some conscientious objectors refuse to submit to any of the procedures of compulsory conscription. Although all objectors take their position on the basis of conscience, they may have varying religious, philosophical, or political reasons for their belief"
(The New Encyclopaedia Britannica (1980) Vol III p 923.)
The two appellants are both conscientious objectors. Their refusal to render military service is based not on religious principles but on other principles
/16
16
principles they hold no less sincerely, tenaciously and
resolutely. It was this attitude which brought them
into collision with the State and ultimately led to
their prosecution.
It will be convenient at this stage to quote
s 126 A of the Act omitting only subsections (4), (5)
and (8) which have no direct or indirect bearing on the
issues in the present appeal. Section 126 A(l)(a),
which has previously been quoted is repeated in prder
to facilitate reading of the section. The section
thus truncated, reads:-
"(1) Any person liable to render service in terms of section 22 or 44 who when called up -
(a) refuses to render such service in the South African Defence Force, shall be guilty of an offence and liable on conviction to imprisonment for a period one-and-a-half times as long as the aggregate of the maximum of all periods of service mentioned in section 22(3) or 44(3), as the case
/17
17
may be, during which he could otherwise, in terms of those sections, still have been compelled to render service, or for a period of 18 months, whichever is the longer; or
(b) fails to report therefor, shall be guilty of an offence and liable on conviction only to imprisonment or detention for a period not exceeding eighteen months, irrespective of his rank, or a fine as may be imposed upon him by a court martial in terms of the provisions of the First Schedule.
(2) Any person liable in terms of any other
provision of this Act to render service or undergo training, other than a liability to render service in terms of Chapter X, and who when called up -
(a) refuses to render service or
to
undergo training in the South
African Defence Force, shall
be
guilty of an offence and liable on
conviction to
imprisonment for a
period of 18 months;
(b) fáils to report
therefor, shall be
guilty of an offence and liable on
conviction
only to imprisonment or
detention for a period not
exceeding
eighteen months,
irrespective of his rank, or such
fine as may
be imposed upon him by
/18.
18
a court martial in terms of the provisions of the First Schedule.
(3) Notwithstanding anything to
the contrary
contained in any law -
(a). a magistrate's court and an
ordinary court martial shall, if
they otherwise have jurisdiction,
have jurisdiction to impose the sentences provided for in this section; (b) at the imposition in terms of this section of any sentence of -(i) imprisonment or detention which has not been suspended in full; or (ii) a fine by a magistrate's court at, the non-payment of which imprisonment must be served, where, due to such non-payment, imprisonment is served, the commission of an officer shall be deemed to have been cancelled and a warrant officer or a non-commissioned officer shall be deemed to have been sentenced to reduction to the ranks.
(6) Any person who has served the
full period
of imprisonment imposed upon him in terms
of
subsection (l)(a) or (2)(a), shall be exempt
/19
19
from his liability to render service in terms of this Act.
(7) Any person convicted in terms
of
subsection (l)(a) or (2)(a) who, before the
expiry of the
term of imprisonment which he
is serving, in a notice signed by
him and
directed to the Adjutant-General states that
he is
willing to render service or to undergo
training in terms of the
Act, shall be
exempted from serving the remaining portion
of
his sentence of imprisonment provided he
renders the service or
undergoes the training
for which he is liable in terms of the
Act:
Provided that if that person should at any
time thereafter
refuse to render any service
or undergo any training for which he is liable in terms of the Act, he shall serve the said remaining portion of his term of imprisonment: Provided further that the Minister may determine that any part of the period of imprisonment which that person has served shall be regarded as service or training which he has to render or to undergo.
(8) "
As, on the arguments advanced on appeal, s 72I has relevance to the interpretation of s 126 A(l)(a) I set out its provisions as well, omitting subsections (4)
/20
20
and (6) which are not of any present significance. The
section, with these omissions, reads:
"(1) Any person referred to in section 72E (2) who refuses or fails to render the service which he is liable to render in terms of that section, shall be guilty of an offence and liable on conviction to imprisonment for a period which is equal tó the period of service which he is liable to render in terms of that section.
(2) Any person referred to in
section
72E (3) who -
(a) refuses or fails to render community
service shall be guilty of an offence
and liable on conviction to detention
for a period which is equal to the period of community service which he still had to render at the time of such refusal or failure;
(b) refuses or fails to comply
with or carry
out any order or duty in relation to
community
service shall be guilty of an
offence and liable on conviction to
a
fine not exceeding R500 or imprisonment
for a period not
exceeding six months or
to both such fine and such imprisonment.
(3) (a) Any person who has
served
imprisonment or detention pursuant to a
sentence in
terms of subsection (1) or (2)
(a) in full or who, after he has
been
/21
21
sentenced in terms of subsection (2)(a) and has been released on parole, has complied with the conditions of parole, shall be exempted from his liability to render the particular service or community service in terms of section 72E (2) or 72E (3), as the case may be.
(b) If any person who was released on parole while serving a sentence of detention in
terms of subsection (2)(a), is found by the court which imposed the sentence or another competent court to have acted in conflict with the conditions of parole, such court . shall order that such person undergo imprisonment in a prison referred to in section 1 of the Prisons Act, 1959 (Act No 8 of 1959), for a period equal to the unexpired portion of such detention.
(4)
(5) Any court which sentences any
person to
imprisonment or detention in terms of
subsection (1)
or (2)(a), may suspend the
operation thereof only if the
conditions of
suspension provide that the service referred
to
in section 72E (2) or the community
service, as the case may be,
shall be
rendered by that person in accordance with
this Act:
Provided that the operation of a
sentence imposed in terms of
subsection
(2)(a) which is thus suspended shall,
notwithstanding
anything to the contrary in
/22
22
any law contained, not be suspended f or a period which is shorter than the remaining period of community service still to be rendered by the person concerned.
(6) "
I turn now to consider the meaning of s 126 A(l)(a). In doing so I bear in mind the remarks of SCHREINER, JA, in Jaga v Donges NO and Another (supra) at 662 G - 664 F with regard to the lines of approach that may be followed in order to ascertain the intention of the legislature. (See also Stellenbosch Farmer's Winery Ltd v Distillers Corporation (SA) Ltd and Another 1962(1) SA 458 (A) at 474.) When considering the meaning of s 126 A(l)(a) in its immediate context i e, standing alone, I am not closing my eyes to the broader context within which interpretation must, in the final result, take place. Section 126 A(l)(a) is an unusual penalty provision. Ordinarily when a statute prescribes imprisonment as
/23
23
punishment for an offence, it provides a stated period of imprisonment. Section 126 A(l)(a) provides not only that but also a formula for the calculation of an alternative period of imprisonment. Thus, a person who refuses to render military service shall, in terms of the subsection, be "liable on conviction to" the longer of one of two alternative periods of imprisonment - the one such period being stipulated in the subsection, the other calculable in terms of the stated formula. If, applying the formula, a period in excess of 18 months is arrived at, the person concerned is "liable to" imprisonment for such period. If _not, the upper limit of imprisonment he is "liable to" is 18 months. There is, in my view, nothing in the wording of the subsection which compels the conclusion, either from the words themselves or by necessary implication, that the legislature intended the imposition of a mandatory
/24
24
sentence. On the contrary, as I shall endeavour in
due course to show, the provisions of the subsection
are entirely consistent with an intention on the part
of the legislature not to interfere with the courts
discretion in regard to sentence.
In the Bruce matter the court a quo, in
concluding that 126 A(l)(a) provided for a mandatory
sentence, set great store by the words "whichever is
the longer". In the course of his judgment J H
COETZEE, J, (with whom M J STRYDOM, J, concurred) said
the following:
"These words are clear and unambiguous. In my view the language of this section clearly shows that only one of two periods of imprisonment can be imposed by a court. Either 18 months when the computation of one-and-a-half times the total periods as the case may be is less than 18 months or that longer computed period. These words make it absolutely clear that in respect of sentence no discretion whatsoever remains with the presiding judicial officer."
/25
25 (See also the remarks of FOXCROFT, J, in the Toms case at 570 C to E.)
With great respect to the learned judges I am constrained to disagree. The words "whichever is the longer" are in my view only relevant to determine, in any given case, the upper limit of the court's punitive jurisdiction - 18 months or, if the formula provides for a longer period, such longer period. The
moment alternative periods of sentence were provided
there was need for qualification in the interests of clarity; - was the person "liable to" be sentenced to the greater or the lesser period? The words, however, have no bearing on the question whether the court is compelled to impose the higher of the two séntences.
In passing it should be mentioned that if the legislature had intended a mandatory sentence it could, with relative ease, have made its intention entirely
/26
26
clear. Instead of using the words "liable on
conviction to" it could simply have used the words "shall be sentenced to". Such usage would have permitted of no doubt that the legislature intended a mandatory sentence. In Toms case (at 570 D) the court a quo stated that if a maximum period of imprisonment was intended and not a mandatory period it would have been a simple matter for the legislature to
have added or inserted appropriate words to make its
intention clear. This is not the correct approach. The converse is true. In the absence of clear words that a mandatory sentence was intended it must be inferred that the legislature intended the court to retain its discretion as to sentence. It is not without significance that in other instances where the legislature has intended to impose a mandatory or a minimum sentence it has made its intention quite clear
/27
27 by using appropriate language - see e g the provisions of s 277(1)(a) of the Criminal Procedure Act 51 of 1977 in relation to the sentence of death in the case of murder; s 329(2)(a) of the now repealed Criminal Procedure Act 56 of 1955 which provided for a compulsory whipping upon conviction of certain offences; s 2(1) and s 3 of the old Terrorism Act 83 of 1967 (which provided for minimum sentences); and the
repealed sentence provisions (s 2(ii) and s 2(iv))of
the Abuse of Dependence - Producing Substances and Rehabilitation Centres Act 41 of 1971 (which also provided for mimimum sentences). In the Act itself there are instances of injunctions to the court being couched in clearly imperative language - see e g s 72I (3)(b) and (5). Interestingly enough, if the respondent's argument that s 126 A(l)(a) prescribes a mandatory sentence of imprisonment is correct it would
/28
28
seem to be the only instance of its kind - a prescriptive sentence of imprisonment which provides no limits of punishment, and which at one and the same time is in effect both a minimum and a maximum sentence. Counsel were not able to refer us to any other instances of such a sentence, nor am I aware of any. (As appears more fully below, a mandatory sentence of imprisonment appears to be something unknown in our law.) The very uniqueness of the situation if the sentence were mandatory may point against its being so. At least in the case of minimum sentences there is a range between the prescribed minimum sentence and the discretionary maximum sentence which may provide for some, albéit limited, degree of individualization.
The proper interpretation of s 126 A(l)(a) in its immediate context lies in the meaning of'the words
/29
29
"liable to" in the phrase "liable on conviction to".
The word "liable" is capable of various shades of
meaning. The meaning to be attributed to it in any
particular case depends on the context in which it is
used (cf. Fairlands (Pty) Ltd v Inter-Continental
Motors (Pty) Ltd 1972(2) SA 270 (A) at 276 A - B. )
The Afrikaans text uses the words "strafbaar met".
The Afrikaans text is the signed text. However, Act
34 of 1983, which substituted the present s 126 A was
signed in English. Nothing would seem to turn on
this, however, as the parties are ad idem that the
words "liable to" and "strafbaar met" are synonymous
with each other (cf. S v Nshanqase 1963(4) SA 345 (N)
at 347 A). I shall concern myself with the meaning
of the words "liable to", but it is interesting to note
that in S v Nel (supra) VAN DER WALT, J, said (at 958
E), with reference to the use of the words "strafbaar
met" in a penal provision, that
/30
30
"(n)a my mening, vir enigeen met 'n aanvoeling vir Afrikaans is dit nie h gebiedende bepaling nie maar slegs h magtigende bepaling".
The Shorter Oxford English Dictionary
gives,inter alia, the following meanings of the word
"liable":
"1 Law. Bound or obliged by law or equity; answerable (for, also to); legally subject or amenable to. 2.a. Exposed or subject to or likely to suffer from (something prejudicial)
b. Const. inf. Subject to the
possibility of (doing or undergoing something undesirable)".
Wests Legal Thesaurus/Dictionary defines
"liable" (when not used in relation to an obligation)
as, inter alia:
"2. Susceptible (liable to be burned).
Exposed, likely to happen, prone,
tending, in danger of, ripe for,
vulnerable "
In Black's Law Dictionary its meaning is
given, inter alia, as:
/31
31
"Exposed or subject to a given contingency, risk or casualty, which is
more or less probable Exposed, as
to damage, penalty, expense, burden or anything unpleasant or dangerous"
Having regard to these definitions I agree
with the contention advanced on behalf of the
appellants that the words "liable to" in a provision
such as the one under consideration would normally
denote a susceptibility to a burden of punishment and
not that the burden in guestion is mandatory or
compulsory : the actual incidence and extent of the
burden must still be determined. This is supported by
judicial authority. In Words and Phrases Legally
Defined (2nd Ed, Vol 3, sv "liable") reference is made
to the Australian case (unfortunately not available to
me) of O'Keefe v Calwell (1949) A L R 381, where at p
401 it was stated that:
/32
32
"The ordinary natural grammatical meaning of a person being liable to some penalty or prohibition is that the event has occurred which will enable the penalty or prohibition to be enforced, but that it still lies within the discretion of some authorised person to decide whether or not to proceed with the enforcement". In Squibb United Kingdom Staff Association v Certification Officer (1979) 2 All E R
452 (C A) the court was concerned with the meaning of
the words "liable to interference"in s 30(1)(b) of the Trade Union and Labour Relations Act 1974. Lord Denning, MR was of the view that the word "liable" is "a very vague and indefinite word" (at 458 c) but held that the phrase referred to meant "vulnerable to interference" or "exposed to the risk of interference". SHAW, LJ, expressed a more definite view. According to him "(t)he phrase 'liable to' when used otherwise than
...../33
33
in relation to legal obligations has an ordinary and well-understood meaning, namely 'subject to the possibility of'" (at 459 'n).
South African cases dealing with the meaning and effect of the phrase "liable to" have not been harmonious. Its meaning has been considered mainly in the context of s 37(1) of Act 62 of 1955. That section provides that any person who receives into his
possession stolen goods without having reasonable cause
for believing that such goods are the prpperty of the person from whom he receives them "shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of receiving stolen property knowing it to have been stolen". (My underlining - the words used are identical with those in s 126 A(l)(a)). One of the penalties previously prescribed in terms of s 329(2) of Act 56 of 1955 read
/34
34
with Part II of the Third Schedule thereto for receiving stolen property was a compulsory whipping. The question arose whether the words "liable to" rendered the accused subject to such compulsory whipping. In R v Hlongwene 1956(4) SA 160 (T) it was held that s 37(1) prescribed only the maximum penalty to which an offender is subject, and dfd not impose upon a court the obligation of imposing the same penalty which it would have had to impose in the case of a conviction for receiving. Hlonqwene's case was followed in the Orange Free State in R. v Jeje 1958(4) SA 662 (0) and in the Cape Province in R v Cupido 1961(1) SA 200 (C). The Natal courts, however, came to a different conclusion and held that a whipping was compulsory also in the case of a conviction for statutory receiving - see R v Ndhlovu 1956(4) 309 (N); R v Kalna 1958(3) SA 123 (N); S v Nshanqase, (supra).
/35
35
It is not necessary to debate the merits of the opposing views expressed in these judgments. Suffice it to say that the line of reasoning in Hlongwene's case, and those cases that followed it, is in my view to be preferred to the views adopted by the Natal courts.
Having regard to the language used in s 126 A(l)(a), and the other considerations to which I have alluded, I am of the view that in their immediate
context the words "shall be liable on conviction
to " in s 126 A(l)(a) merely denote a
susceptibility to the longer of the two alternative periods of imprisonment provided for in the section and do not preclude a court, in the exercise of its discretion, from imposing a lesser sentence.
Is there anything within the broader context of the Act which could sufficiently disturb this
/36
36
conclusion so as to lead to a different result? This brings me immediately to s 126 A(l)(b). This subsection, it will be recalled, provides that where a person liable to render service fails to report for such service he shall be liable on conviction "only to imprisonment or detention for a period not exceeding eighteen months". The words "not exceeding" postulate a maximum sentence, and exclude a mandatory sentence. Their effect is to build into the provision in which they are used a judicial discretion to impose a lesser sentence than the prescribed maximum. Does the inclusion of these words in s 126 A(l)(b), and their omission from s 126 A(l)(a), necessarily signify that whereas the court's discretion in relation to punishment has been retained in s 126 A(l)(b), it has been taken away in 126 A(l)(a)? Having regard at this stage only to the provisions of s
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37 126 A(l)(a) and (b) I do not believe this to be so. The omission of the words "not exceeding" from s 126 A(l)(a) cannot per se justify such a conclusion where the subsection is ótherwise couched in language which would normally permit of a discretion. In addition, to have included the phrase "not exceeding" in s 126 A(l)(a) would in my view have been inappropriate to the language of the subsection. The phrase "not exceeding" is a limiting provision whereas the phrase "whichever is the longer" has the opposite effect. There would be some incongruity in language in providing, in the same provision, for a sentence not exceeding 18 months yet at the same time authorising a maximum sentence which could, applying the formula laid down, be in excess thereof. For this reason too the omission of the words "not exceeding" from s 126 A(l)(a) cannot necessarily justify the
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inference that its provisions are mandatory. There is a further consideration. Section 126 A(l)(a) provides for two alternative maximum sentences, one of which bears a diréct relationship to the period of service which the offender is still compelled to render. The period calculated according to the prescribed formula, as has been observed, could be higher than 18 months. The words "only to imprisonment or detention for a
period not exceeding eighteen months" in s 126 A(l)(b),
if due consideration is given to the word "only", may have been intended to indicate that of the two alternative maximum punishments provided for in s.126 A(l)(a) only one, namely, imprisonment up to a maximum of 18 months (and not the formula, the application of which might have provided for a longer period) would apply in the case of a failure to report. In this
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sense the words "not exceeding" may merely have been intended to emphasize the limitation imposed by the word "only".
The words "not exceeding" appear in a number of penal provisions throughout the Act. Their presence clearly signifies, in respect of those provisions, a discretion as to punishment. Their omission from s 126 A(l)(a), if for other than linguistic reasons, assumes significance, particularly when one has regard to s 126 A(2). One finds, as between s 126 A(2)(a) and (b) the same essential difference in wording apparent between s 126 A(l)(a) and (b). The words "not exceeding" appear in s 126 A(2)(b) which deals with a failure to report for service, but not in s 126 A(2)(a) which deals with a refusal to render service. It was argued that when s 126 A( 1) and (2) are read together a pattern emerges indicative of the legislative intent. The pattern is
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40 this : The legislature has drawn a clear distinction between a refusal to render service on the one hand, and a failure to report therefor on the other. For obvious reasons it regards the former (which involves a wilful act) in a far more serious light than the latter. (which involves mere culpability). For this reason it has distinguished between the sentences in the two types cf cases. In the case of failure, by providing for a period of imprisonment "not exceeding" 18 months it has left the court's discretion unfettered; in the case of refusal, by the omission of such words, it has provided for a mandatory sentence.
The argument that there exists such a discernible pattern indicative of the legislative intent based on the distinction between refusal and failure loses its impact, however, when regard is had to certain of the provisions of s 72I of the Act. No
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41 distinction is drawn, in relation to the question of sentence, between a refusal and a failure to render either service in terms of s 72E (2) (s 72I (1)) or to render community service (s 72I (2)(a)). Refusal and failure are simply lumped together, and both made punishable with the same penalty - this notwithstanding that a wilful refusal would normally be far more serious than a culpable failure (which can cover a wide range of culpability from minimal to gross). There is a significant degree of correspondence between the provisions of s 72I (1) and (2)(a), and s 126 A(l)(a). In substance they are couched in the same language. If the provisions of s 126 A(l)(a) are mandatory in respect of sentence, then those of s 72I (1) and (2)(a) must be as well. Yet if the mandatory sentence in s 126 A(l)(a) is premised on the clear distinction drawn by the legislature between refusal and failure, could
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the legislature ever have intended that a mere failure to render the service ref erred to in s 72I (1) and (2)(a) should be visited with a mandatory sentence? I believe not. (In this respect I disagree with the conclusion reached in S v Lewis en h Ander 1985(4) SA 26 (T) that s 72I (2)(a) does provide for a mandatory sentence - a conclusion reached in a review matter without the benefit of full argument and without apparent regard to the principles and considerations referred to in this judgment.) This shows how difficult it is to discern a logical and clear pattern indicative of the legislative intent. One is left in doubt as to what the legislature precisely had in mind, and one cannot necessarily infer that its intention was different from that which the words of s 126 A(l)(a), in their primary sense, signify. One must heed the warning sounded by CORBETT, JA, in the Summit
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Industrial Corporation case (supra) at 596 J - 597 B that "it is dangerous to speculate on the intention of the Legislature (see eg the reference in Savage v Commissioner for Inland Revenue 1951(4) SA 400 (Á) at 409 A) and the Court should be cautious about thus departing from the literal meaning of the words of a statute (see remarks of Solomon JA in Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530 at 554-5). It should only do so where the contrary legislative intent is clear and indubitable (see Du Plessis v Joubert 1968(1) SA 585 at 594-5)."
To sum up thus far. The provisions of s 126 A(l)(a), taken on their own, prima facie do not prescribe a mandatory sentence. The use of the words "not exceeding" in s 126 A(l)(b) does not necessarily detract from this conclusion. Their use also in s 126 A(2)(b), and elsewhere in the Act, is an indication
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44 that the legislature may have intended that in the penal provisions in which the words were used the court would retain a discretion in relation to punishment, whereas in the instances where they were omitted it would not. The distinction in wording might suggest that the legislature intended that a refusal to perform military or other prescribed service would be punishable with a mandatory sentence, whereas in the case of a failure to do so the court would retain its discretion in relation to punishment (up to the stipulated maximum). Doubt, however, as to whether the legislature intended such a distinction is created by the wording of s 72I (1) and (2)(a) of the Act. In the end result, whatever the legislature may have intended, it has failed to make its intention sufficiently clear to justify a departure from the prima facie meaning of s 126 A(l)(a). In arriving at
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45 this conclusion due regard has been had to the fundamental principles and other relevant considerations expounded earlier in this judgment.
One of the objects of the Act, as I have previously mentioned, is to coerce male citizens between the ages of 18 to 65 to do military service. To enforce and effectively achieve this object adequate sanctions and penal provisions were introduced to induce such persons to opt for military service, and to deter would-be dissenters. The provision in s 126 A(l)(a) for a sentence of up to one-and-a-half times the period of outstanding military service was no doubt intended to impress upon those who refuse to do military service that the game may not be worth the candle. In this respect the legislature appears to have regarded it as appropriate that the prospective period of imprisonment should bear some correlation to
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the period of military service it was sought to avoid. It was argued on behalf of the respondent that this object would be thwarted or defeated if s 126 A(l)(a) conferred a discretion and inadequate sentences were passed. It was also contended that it would be contrary to the spirit and ambit of the Act to confer such a discretion. The legislature must accordingly be taken to have stipulated a mandatory sentence to achieve its object. Reliance was also placed on s 126 A(6) as being inconsistent with anything other than the imposition of a mandatory sentence, inter alia because it exempts someone who has served his sentence in full from further liability to render military service in terms of the Act. It was contended that unless there was a prescribed mandatory sentence, the provisions of s 126 A(6) could operate unfairly and result in inequality of treatment if
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disparate sentences were imposed.
I am not impressed by these arguments. The potential punishment provided for in s 126 A(l)(a) does not depend for its effectiveness on whether the sentence is mandatory or discretionary. The prospect of imprisonment - for up to one-and-a-half times the period of military service outstanding (or 18 months) -is a sufficient deterrent in itself. No matter how unpleasant the thought of military service may be, for most people the prospect of imprisonment would be worse. It is not necessary or desirable for achieving the purpose of the Act that every person convicted under s 126 A(l)(a) should be subjected to the full rigour of a draconian provision, without individualisation or consideration by the court of the relevant circumstances (which would be the case if the subsection prescribed a mandatory sentence). The
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system of compulsory military service will not be undermined if a period of imprisonment is imposed which is not equal to one-and-a-half times the aggregate of all periods of service such person is still obliged to render (or is less than 18 months), but is otherwise an adequately coercive sentence. It is fallacious to assume that only a mandatory sentence can have the required effect or achieve the desired result. Rigorous and harsh sentences do not necessarily effect their purpose and they are out of tune with a just society. Furthermore, it is undesirable to substitute an arbitrary rule for the exercise of a balanced and humane judgment. Nor is it proper to take the view that unless provision is made for a mandatory sentence lenient sentences may be imposed which would defeat the object of the legislature. This is founded on the unjustified premise that the presiding judicial officer
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will not properly exercise his discretion as to punishment. In imposing sentence proper regard will have to be had to, inter alia, the object of the legislation; the penalties prescribed; that the sentence should bear some correlation to the period of military service it has been sought to avoid; that if the sentence imposed is served in full the person concerned will be exempt from liability to render service in f uture (s 126 A( 6) ) ; and the f act that the offender can at any time thereafter elect to render military service or undergo training in which case he would be exempt from serving further imprisonment (s 126 A(7)). This will enable a proper sentence to be arrived at, with due regard as well to the individual circumstances of each offender. No dóubt there is the risk of an inadequate sentence being passed, and the object of the legislature being thereby defeated, but
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such risk is no greater than in any other case. And if this gives rise to ineguality of treatment, or ineguities result therefrom, they must inevitably be less than those that flow from the imposition of mandatory sentences.
Dealing specifically with s 126 A(6), I do not find its provisions inconsistent with the notion that s 126 A(l)(a) permits of a discretion in relation to sentence. It is worth noting that the words "the full period of imprisonment imposed upon him in terms of subsection (l)(a) or (2)(a)" do not, at least with reference to subsection (l)(a), necessarily exclude a sentence of less than the two alternate maximum sentences for which provision is made. If s 126 A(l)(a) prescribed a mandatory sentence, and ss 6
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51 intended to refer thereto, one would have expected more appropriate language - such as the words "prescribed by" instead of "imposed upon him". Nor does the fact that the sentence imposed, if served in full, will exempt the person concerned from liability tó render further service detract from a discretionary sentence. I find nothing illogical or untenable in the notion that the legislature intended that once a court, after due consideration of all relevant considerations, including those I have mentioned, as well as personal factors, arrives at an appropriate sentence, and such sentence is served in full, exemption from liability to render further service should follow.
It was also argued on behalf of the respondent that, in effect, the Act requires that the correlation between the maximum period of imprisonment and the military service which the convicted person is
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still liable to render must be preserved at all times; if it is to be preserved then ss (6) en (7) are unworkable unless the term of imprisonment imposed by the court is the maximumi . It must follow that such maximum is a mandatory sentence. I can see no reason in logic or policy why where should be imputed to the legislature an intention to maintain the correlation in all circumstanes. A day in the army is not at all comparable with one-and-a-half days in prison. (If it were, the coercive object of the Act could ne'ver be achieved.) Moreover military service is performed at intervals over a period of 14 years, so.that there is a reduced interference with a man's domestic life, his social relations, and his vocation. Service in prispn is over a continuous period with resulting disruption of his whole existence, including possible destruction of his domestic life and the ruin of his career. And,
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as I have mentioned, there is no logical reason why, if a convicted person has served his term of imprisonment (provided it is adequate), he should not be exempted under ss (6) from his liability to render service in terms of the Act. Similarly in regard to the proviso to ss (7).
In argument reference was also made to the history of s 126 A. I do not propose to traverse the history thereof. Suffice it to say that such history (assuming that regard may be had thereto) is not in my view of material assistance in arriving at a decision one way or another in this matter.
In the result I am of the view that s 126 A(l)(a) did not prescribe a mandatory sentence, and it was open to the magistrates in both the Toms and Bruce cases to impose a sentence less than the higher of the two alternative maximum sentences provided for
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in the section.
The same conclusion can be reached by adopting a somewhat different approach. I have previously mentioned that where a prescribed period of imprisonment is qualified by words such as "not exceeding" the effect is to build into the provision a judicial discretion to impose a lesser sentence. But even where the prescribed period is not so qualified, the court has a discretion under s 283 of the Criminal Procedure Act 51 of 1977. This section provides:
"(1) A person liable to a sentence of imprisonment for life or for any period, may be sentenced to imprisonment for any shorter period, and a person liable to a sentence of a fine of any amount may be sentenced to a fine of any lesser amount.
(2) The provisions of subsection (1) shall not apply with reference to any offence for which a minimum penalty is prescribed in the law creating the offence or prescribing a penalty therefor."
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The question arises whether s 283(1) is
inapplicable because "a minimum penalty is prescribed"
in s 126 A(l)(a)? The subsection does not in terms
prescribe a minimum penalty. Its effect is certainly
to prescribe a maximum penalty, but does it prescribe a
mandatory one? This expression (or a similar one) is
not used in the Criminal Procedure Act. Hiemstra:
Suid Afrikaanse Strafproses; 3rd Ed, p 650 states:
"Die verskil tussen die minimum straf en 'n voorgeskrewe straf wat verpligtend is, is soos volg: By 'n minimum straf is net die minimum verpligtend. Die hof kan na goeddunke ook meer oplê. In die geval van h verpligte voorgeskrewe straf kan die hof nie meer of minder as die voorgeskrewe straf oplê nie."
The learned author quotes no authority for the use of the expression, and gives no examples of such a punishment. Du Toit: Straf in Suid-Afrika states (at 384):
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"(a) In die geval van h voorgeskrewe, verpligte straf, mag die verhoorhof slegs daardie straf en niks anders nie, oplê."
In a footnote he says
"Soos bv in oortredings van die Drankwet waar bepaal word dat tweede oortreders bepaalde, uitdruklik - voorgeskrewe strawwe opgelê moet word. Slegs daardie straf - en geen ander nie - mag opgelê word"
but givés no reference to the Liquor Act to which he
refers (Act 87 of 1977 - now Act 27 of 1989) and no
other examples. (I am not satisfied from a perusal of
the Liguor Act that it makes provision for mandatory
sentences in the sense in which I have used that term.
Nor, as I have indicated, were counsel able to direct
our intention to any.) Neither Snyman and Morkel:
Strafprosesreg, nor Ferreira: Strafprosesreg in die
Laer Howe: 2nd Ed, make any mention of a mandatory
sentence of imprisonment as distinct from a minimum
sentence. And the fact that s 283(2) of the Criminal
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57 Procedure Act does not mention such a sentence suggests that it is unknown to the legislature. Plainly if it is not mythical, it is avis rarissima.
There is no reason why the legislature should not impose such a sentence if it wishes to do so. The sentence would be at the same time a maximum and minimum - no greater and no lesser sentence would be imposable. However, such a sentence is not to be found expresse et totidem verbis in s 126 A(l)(a). If then it is to be found at all, it can only be by way of implication.
Craies on Statute Law: 7th Ed, deals at pp
109-122 with "construction by implication". The
learned author says (at p 109):
"If the meaning of the statute is not plain, it is permissible in certain cases to have recourse to a construction by implication, and to draw inference or supply obvious omissions. But the general rule is 'not to import into statutes words which are not to
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be found there', and there are particular purposes for which express language is absolutely indispensable. 'Words plainly should not be added by implication into the language of statute unless it is necessary to do so to give the paragraph sense and meaning
in its context.'"
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