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2.1 Ashworth[1] points out that sentencing is the stage after the determination of criminal liability and may be characterised as a public, judicial assessment of the degree to which the offender may rightly be ordered to suffer legal punishment. It is therefore important not to lose sight of the fact that the values which society wishes to uphold should be those which inform any reform of the sentencing system.
2.2 The approach of our courts to sentencing and the need for reform is illustrated by the facts in S v Young[2] and the comment thereon by RG Nairn.[3] Young, a man aged 57 with a clean record, was convicted by a regional court magistrate on 9 counts of contravening the Prevention of Corruption Act, 6 of 1958. His crime was soliciting and accepting bribes in relation to the award of contracts by the petrol company for whom he worked. He was sentenced to a total of 90 months imprisonment, of which half was suspended on conditions. The sentence was confirmed on appeal to the then Transvaal Provincial Division, but on further appeal to the then Appellate Division an entirely new sentence, (the sentence on certain accounts having been reduced), of 64 months imprisonment of which half was suspended, was imposed. Commenting on these facts[4] Nairn criticises current practices as follows:
... two learned judges gave careful consideration to the same issues, arising out of a set of agreed facts, but arrived at diametrically opposed conclusions. It seems that the nature of our sentencing procedure makes this type of outcome virtually inevitable, because whereas the course of the trial is determined by clearly defined rules of law, the approach to sentence is left largely to chance. What this means - as the present case demonstrates - is that the point of view of the individual sentencer will largely determine his approach to a given set of facts, and there will therefore be as many different approaches as there are different sentencers... This state of affairs is quite understandable, because judges are human beings: each one is a unique product of a unique combination of social, physical, psychological and economic influences, so each will inevitably go his own way in the absence of clearly articulated guidelines; as a consequence, uniformity in sentencing remains unattainable. The problem of uniformity has not yet been approached seriously and scientifically in our law, and until it is it will remain a murky and uncertain , albeit vital, problem,
and:[5]
This judgment, despite the canvassing of relevant factors, is with respect, almost as bare of reasons as was that of the court a quo and a number of questions are left unanswered:
(i) How exactly does one draw the line between a crime warranting a fine and one warranting imprisonment? No principle was laid down and no general test was suggested, and yet this was the most important issue in the appeal. The question of seriousness was dealt with, but not sufficiently exhaustively to provide one with a general guide - one is still left wondering how serious a case has to be before the scales tip from fine to imprisonment.
(ii) Was this intended to be a deterrent punishment, or what object was it designed to achieve? It is suggested at 609E that deterrence is an important consideration, but nowhere is it suggested that this type of offence is sufficiently prevalent to warrant passing a sentence which is so severely deterrent that it approaches the category of an exemplary sentence. (It is submitted, with respect, that a sentence of imprisonment passed on a man of 57 with a clean record, for an offence of this nature, can only be classified as exemplary).
(iii) Did the court consider the effect that this sentence would have on the appellant, and weigh this against the general needs of society? One cannot help wondering whether the need to protect society warranted such a drastic and destructive punishment ...
It seems, as has been pointed out elsewhere ... that a serious and systematic approach to punishment is long overdue. With the greatest respect, cases like Young demonstrate that our courts have not yet begun to take this problem seriously. It is no longer enough to list aggravating and mitigating factors and then move straight on to a generalised conclusion. The lower courts are now in desperate need of a comprehensive set of principles which can be used as basic guides. Ideally these principles should be formulated by the Appellate Division so as to ensure their uniform application throughout the country. Upon these principles could be built a comprehensive body of sentencing law - our only road out of the quagmire.
2.3 It should be pointed out that the issue of mandatory sentences cannot be discussed without reviewing sentencing practices in South Africa as a whole because when one is considering reform in this regard, the approach to be adopted will be influenced by one’s approach to sentencing as a whole.
2.4 Punishment is the sanction of the criminal law and there is general consensus on the two outstanding characteristics of punishment, namely the intentional infliction of suffering upon an offender and the expression of the community’s condemnation and disapproval of the offender and his conduct[6]. Criminal punishment is, however, more than the infliction of suffering. It is the infliction of suffering on account of the commission of a crime. According to Van der Merwe[7] criminal law is inherently moral and punishment is essentially justified as the moral reproach of the community.
2.5 The aims of punishment describe the result that is expected to be achieved by means of punishment. There are a number of aims, also called theories, of punishment recognised by the courts in South Africa. In S v Khumalo[8] these aims are stated as follows:
In the assessment of an appropriate sentence, regard must be had inter alia to the main purposes of punishment mentioned by Davis AJA in R v Swanepoel 1945 AD 444 at 455, namely, deterrent, preventative, reformative and retributive (see S v Whitehead 1970 4 SA 424 (A) at 436 E-F; S v Rabie 1975 4 SA 855 (A) at 862).
2.6 For the purpose of this paper a detailed discussion is not deemed necessary and a brief reference to what is understood by these aims or theories would suffice. A popular view is that the ultimate aim of punishment is to protect the community against crime. The main differences of opinion arise as to the best method to achieve this. One method of doing this is by directly incapacitating the offender, for example by imposing the death penalty. This method of coercing the offender directly can be described as direct prevention. A second method is so-called indirect prevention where the aim is to persuade the offender to cease his activities voluntarily.
2.7 In principle the aims or theories of punishment belong to one of two groups, namely the absolute theory of retribution or the relative theories of prevention or a combination of these theories.
(i) The absolute theory - retribution
2.8 In terms of the absolute theory of retribution, punishment is justified because a crime was committed. It is also known as the “justice” theory, because the injustice that has been brought about by the commission of a crime is said to be wiped out by the imposition of an equivalent evil upon the offender. Punishment is imposed because it has been deserved. It has also been described as the desire to make the offender suffer, not because it is good for him, not because suffering might deter him from further crime, but simply because it is felt that he deserves to suffer.
(ii) Relative theories
2.9 In terms of the relative theories punishment is justified by the value of its consequences, namely the prevention of crimes and crimes are to be prevented in order to protect society. The basic idea is that offenders should become, and citizens generally should remain law-abiding. Two types can be distinguished from this, namely individual prevention and general prevention.
(a) Individual prevention
2.10 Individual prevention is aimed at offenders who have already been convicted of crimes. The idea is that the offender should be prevented from repeating his criminal behaviour, be it through incapacitation or intimidation by the threat of punishment or through his rehabilitation. Thus the simplest way in which an offender can be prevented from repeating his crime is to render him permanently or temporarily incapable thereto (for example by imposing the death penalty or imprisonment).
2.11 A further aim is individual deterrence. The underlying idea is that a person who has already been subjected to the pain which punishment brings about will be conditioned in the future to refrain from criminal behaviour.
2.12 A third aim under this heading which has become increasingly popular, is that the personality of the offender be influenced so that he can become a law abiding citizen (rehabilitation theory). Forms of punishment aimed at achieving this are periodical imprisonment or committal to a rehabilitation centre. Under this aim it has become customary to replace the unpleasant word “punishment” with “treatment” for the latter option.
(b) General prevention
2.13 General prevention as an aim of punishment is regarded as justified in that it is calculated to discourage people in general from committing crimes. People are thus restrained from committing crimes by the threat of punishment rather than by the imposition of punishment.
2.14 General deterrence is the classical aim underlying the theory of general prevention. The underlying idea is that people refrain from criminal activities because they know that unpleasant consequences of punishment follow the commission of crime.
2.15 One of the most important facets of general prevention is that the threat and imposition of punishment fulfills an educative, socialising or moralising function - punishment is a concrete expression of society’s disapproval of the act and this helps to form and strengthen the public’s moral code. Secondly, criminal laws are probably complied with by most law-abiding citizens because compliance with the law ensues automatically for them. Thirdly, the general preventive effect of the criminal sanction can also be seen in the role of the criminal law as an informer of the limits of legitimate and acceptable behaviour. Citizens also require orientation as to what conduct would expose them to punishment. Rules of conduct are unlikely to be followed unless they are reinforced by a sanction. Thus the threat of punishment is added to criminal provisions to provide a persuasion for persons to comply with these provisions.
(iii) Integrative theories
2.16 Considerable criticism has been levelled against the retributive theory and the theories of prevention, pursued to their logical conclusion, also led to unacceptable results. Accordingly attempts have been made to integrate these different theories into a single theory. Retribution is thus taken as the basis in order to ensure that justice is done and the principle of proportionality between punishment and the gravity of the offence is applied in order to prevent the aims propagated by the supporters of the prevention theories, from violating principles of justice as regards the offender.
2.17 The Criminal Procedure Act, 51 of 1977 makes provision for different types of punishment[9]. This section is the general enabling statutory provision as far as the various forms of punishment in criminal trials are concerned. Provision is, inter alia, made for the following forms of punishment-
2.18 That section is, however, subject to the provisions contained in the Criminal Procedure Act itself, as well as those contained in other laws or the common law. Courts of law may therefore impose the punishments they are entitled to impose under other legal provisions, or under the common law and section 276 is merely complementary to other penal provisions in the statute and common law. It is, however, not a general provision enabling courts to impose forms of punishment which do not fall within their jurisdiction. A court of law is still limited to its own prescribed sentencing jurisdiction.
2.19 The Criminal Procedure Act also contains certain specific provisions regarding the crimes for which, or the circumstances under which certain forms of punishment may be imposed, for example periodical imprisonment, correctional supervision, declaration as a habitual criminal and declaration as a dangerous criminal.
2.20 Periodical imprisonment may, for example, be imposed for any offence, but a minimum of 100 hours and a maximum of 2000 hours is provided for in the Act and no other punishment may accompany it. Correctional supervision may be imposed for any offence, but it may only be imposed for a fixed period of 3 years. Declaration as a habitual criminal means that the offender will spend an unspecified period in prison which will be at least 7 years, it may only be imposed by a regional or high court, it is incompetent where the accused is under the age of 18 years and where the punishment which may, by itself or together with other sentences, be imposed, would entail imprisonment for a period exceeding 15 years.
2.21 Declaration as a dangerous person may be imposed by a regional court and a high court if the offender represents a danger to the physical or mental well-being of other perons and if the community must be protected against the offender. The offender is sentenced to an indefinite period of imprisonment and the court is obliged to direct that the offender shall be brought before the Court on the expiration of a period deterimined by it and which does not exceed the jurisdiction of the court. A life sentence may also be imposed. Imprisonment for life may literally mean incarceration for the natural life of the offender. Current practice is that a prisoner is not considered for release until he has served at least twenty years (previously such consideration took place sooner). Such a person is considered for release after the Minister of Correctional Services has requested the advice of the National Advisory Council on Correctional Services. The approval of this Council is required before the prisoner may be released.
2.22 In respect of common law crimes such as assault, theft, rape, et cetera there is no statutory provision which specifies the type of punishment. In such cases the courts may impose sentences up to the maximum provided for in the Act governing their criminal jurisdiction. The punishment jurisdiction of magistrates’ and regional courts is determined in terms of section 92 of the Magistrates Courts Act, 32 of 1944.
2.23 The range of punishment which may be imposed on a person convicted of a statutory crime is usually stipulated in the statute which creates the offence, stipulated either in the definition itself or in a separate penalty clause. The regular punishment for statutory crimes is normally a fine or a period of imprisonment which may not exceed a fixed maximum or both.
2.24 Apart from the regular punishments provided for an offence, some statutes make allowance for an increased or further punishment in addition to the normal punishment prescribed, while other statutes provide for certain penalties and orders other than the regular or increased punishment, for example:
2.25 The legislature’s primary task is to define what conduct will be criminal and to provide a threat of punishment. It will ordinarily also prescribe the nature of the punishment that may be imposed and the maximum that may not be exceeded. The court’s function is to impose punishment on offenders found guilty of the commission of crime. It is generally accepted that the South African Courts have a discretion to determine the nature and extent of the punishment to be imposed within this framework.
2.26 Sentencers are also restricted by the framework of punishment created by the legislator. While judges have more freedom (except for maxima set by statutory penalty clauses, no other statutory limits apply to the criminal jurisdiction of the High Court), magistrates are more restricted. Within the legislative framework presiding officers are allowed much freedom, but the principles in terms of which they have to act have often been criticised as imprecise and vague. Certain statutory rules apply for example to the suspension and conditions of sentences. While it is frequently alleged that sentencers have a wide discretion, one should not lose sight of the limitations that do exist and that sentencers do not have an unlimited discretion as is sometimes alleged. In the sentencing process the sentencer is required to make a number of decisions and the freedom to do so differs, depending on the circumstances of the case, the particular legislative framework and the principles developed by the courts.
2.27 There are therefore two institutions which control the exercise of the sentencing discretion, namely relevant legislation and control exercised by the courts of appeal or review. It should, however, be noted that control by the courts has also been subjected to criticism. For example, in S v Pieters[14] it was stated that a court of appeal will only reverse a decision of the trial court if it appears that trial court has exercised its discretion in an improper or unreasonable manner. With regard to the latter, the courts have developed a number of tests for determining when it is appropriate to interfere with the trial courts’ decision: for example, if the sentence imposed “induces a sense of shock” or if the sentence is “startlingly inappropriate” or if it reveals a “striking disparity” compared to the sentence which the court of appeal would have imposed as court of first instance[15]. These tests have been described as vague and unprecise.
2.28 In addition to the modes of control by appelate courts which has been described in the previous paragraph, these courts also exercise control by highlighting certain principles which have to be taken into account when deciding on the appropriate sentence. In the case of imprisonment, for example, the following principles have been developed by the courts:
2.29 Both the courts and the legislature have been criticised for the manner in which they control the sentencing discretion. The appelate courts have been criticised for their reluctance to interfere with the sentencing discretion exercised by the courts of first instance. Van Rooyen[20] states that in the absence of legislative guidelines, the Supreme Court finds itself in the position where it has to play an important role and fulfil a leadership function in developing a sound penal policy through the shaping of guidelines in respect of the sentencing discretion. However, rules are binding but principles are merely guidelines pointing in a general direction, compelling a court to give attention and consideration to certain matters, but not compelling it necessarily to follow that direction. By way of illustration, the principle that first offenders should not be sent to prison does not mean that first offenders may never be sent to prison. Other principles may well outweigh this particular principle.
2.30 Guidance by our appellate courts has also been described as vague and unsatisfactory. In S v Scheepers[21] Viljoen JA, for example expressed the view that imprisonment is justified only when it is necessary for the protection of the community to remove the offender from society and where the aims of punishment cannot be achieved through the imposition of an alternative sentence. This view was, however, rejected in S v Holder[22] where the court held that no court can prescribe to another court when to impose imprisonment.
2.31 The guidance provided by the courts is furthermore complicated by the different approaches in the case law to the so-called theories or aims of punishment, which are discussed below. In S v Khumalo[23] the court held that:
In the assessment of an appropriate sentence, regard must be had inter alia to the main purposes of punishment ... namely deterrent, preventive, reformative and retributive ... Deterrence has been described as the ‘essential’, ‘all important’, ‘paramount’ and ‘universally admitted’ object of punishment.
2.32 In S v Baptie[24] the court observed that offences which have a background in the disordered mental conditions of a perpetrator can usually be cured by psychiatric treatment. Therefore, in dealing with first offenders of that type, it seems proper that the court should suppress its dismay and disgust at the nature of the offences and should, in the interest of justice, endeavour to investigate such matters as the accused’s social background, his domestic state, the sort of work that he does and his intellectual ability. It should also ascertain whether, if a suspended sentence is imposed, the accused is prepared to undergo psychiatric treatment to aid in addressing his or her particular condition.
2.33 In S v B[25] the court of appeal confirmed a sentence of 5 years imprisonment for attempted rape. The court subscribed to the view that, although in ancient times the emphasis was on retribution, in modern times the retributive aspect has tended to yield ground to the aspect of prevention and correction. However, having regard to the circumstances of the case, the complainant, a girl of 16 years, was seriously manhandled by the appellant who showed no remorse afterwards, the court took the view that the magistrate did not overemphasise the retributive aspect and correctly applied the deterrent aims of the sentence both as far as the appellant himself, as well as others were concerned. The court confirmed the sentence of imprisonment.
2.34 In R v S[26] the accused was convicted of committing unnatural sexual acts with a number of boys. With regard to a proper sentence the court observed that, whilst appreciating the great importance of reformative measures in this type of cases, persons who have been guilty of depraved practices should not escape gaol sentences. The court should not encourage the belief that depraved conduct can be embarked upon with no consequence other than that of psychiatric treatment. The court stated that the public will feel alarmed if no real punitive sanction is attached to such conduct.
2.35 In S v S[27] the court of appeal accepted that the appellant was a sick man and that he required psychiatric treatment. However, the court observed that having regard to the serious nature of the offences committed, a period of imprisonment should nevertheless be imposed. The court also emphasised that prevention is one of the main objects of punishment, but emphasised that imprisonment should serve as a warning to others not to indulge in similar conduct.
2.36 In S v B[28] the court accepted that the accused had psychosexual problems in his marriage and that he needed treatment. Having regard to the special circumstances of the case the court imposed a term of imprisonment suspended on condition that he underwent treatment. In S v D[29] the court of appeal held that the magistrate erred in emphasising imprisonment of the accused as means of removing him from contact with children. The court found that on the evidence it appeared that paedophilia was at least partially curable and incarceration was therefore not the only option. The court stated that the paedophile’s sickness, by definition leads to the commission of crimes against an extremely vulnerable segment of society. Thus, if there were no known form of treatment for paedophilia, then incarceration would be the only option to safeguard children from a paedophile’s predations.
2.37 S v D[30] involved sexual abuse of children within family context. The court observed that this conduct is often a manifestation of family pathology and it requires that attention should be given to the family, its composition and dynamics. Furthermore, in a criminal justice system a sentence should also address the future. Of importance is the court’s observation that the sexual molestation of children represents a special form of criminal conduct. The person imposing sentence should ask himself whether, both as regards the particular individual he is dealing with as well as in regard to the interests of the community, it is possible to act in a reconstructive manner. The court set aside the sentence of imprisonment imposed by the magistrate and referred the matter back to the magistrate’s court for reconsideration of sentence. The court of appeal also indicated that in the circumstances of the case it was far more likely that some or other form of compulsory treatment of the accused and the family under the sanction of a totally suspended sentence of imprisonment would be preferable.
2.38 In S v E[31] the trial court approached punishment for the indecent acts committed by the accused from the view that he needed urgent extra-custodial treatment, but because some term of imprisonment was unavoidable, it should be a short term so as not unduly to delay the commencement of treatment. On appeal the Appellate Division stated that the violation of the innocence of young children arouses the community’s indignation and prompts it to call for measures to protect its youth. The penalties provided for therefore understandably reflect the seriousness with which the legislature viewed these contraventions. However, the obvious need to deter would-be offenders, and society’s desire for retribution, must be balanced against the primary need in this type of case to achieve in the long-term interest of society, the offenders’ rehabilitation.
2.39 Finally, considering sentence in S v R[32] the Appellate Division highlighted the introduction of correctional supervision as sentencing option and considered its appropriateness as a proper sentence for sexual offences. The court concluded that correctional supervision was a particularly appropriate sentence having regard to the circumstances of the case. The court held that as the accused had strong family ties and a stable job, his criminality had its origin in his personality defects which responded favourably to therapy, while imprisonment would have a negative impact on the accused. Although the offences were regarded as serious and the accused had a relevant previous conviction, the court was of the opinion that the sentence should emphasise remedial treatment rather than retribution.
2.40 It is clear from the above that, for some kinds of offences at least, the treatment model has a great deal of support in South Africa. The legislative framework for each sentencing option has been criticised as leaving too wide a discretion to the courts and, as a result, in the history of our penal system, a number of attempts were made to limit the sentencing discretion by providing for mandatory minimum sentences. By way of illustration, in 1952 the imposition of corporal punishment was mandatory under certain circumstances. In 1959 imprisonment for the prevention of crime and imprisonment for corrective training were introduced, the imposition of which were compulsory if certain requirements were met. The Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, 41 of 1971, for example also contained a number of mandatory sentences.
2.41 In the past the provisions containing mandatory sentences were subject to strong criticism. In S v Toms; S v Bruce[33] Chief Justice Corbett observed that:
... the imposition of a mandatory minimum prison sentence has always been regarded as an undesirable intrusion by the Legislature upon the jurisdiction of the courts to determine the punishment to be meted out to persons convicted of statutory offences and as a kind of enactment that is calculated in certain instances to produce grave injustice.
and Botha JA[34] expressed the following view:
It is not for me to comment on the policy of the legislature when once I have found an unavoidably clear expression of it in the Act. But I am qualified, entitled and obliged to speak my mind on the effect of that policy on the administration of justice in the courts of the country, which is the sphere in which I function and on that level I find a legislative provision like s 126 A (1) (a), which reduces a sentencing court to a mere rubber stamp, to be wholly repugnant.
* The methodology in sentencing adopted by our courts
2.42 South African courts have often been criticised for adopting an intuitive approach to sentencing. There is a perception that most officials in the magistrates’ courts pass sentence on an unscientific basis. Most magistrates have done what their more experienced colleagues did- impose sentences on the basis of a “feeling”. In S v Makhele [35] this view was confirmed. The court ruled that it is unsatisfactory that responses to queries from reviewing judges regarding sentence amount to a mere repetition of the trite principles of sentencing together with the well known cases without the facts of the case and the personal circumstances of the accused having been determined.
2.43 At present the well-known dictum in S v Zinn[36] is regarded to be the point of departure in the sentencing process:
What has to be considered is the triad consisting of the crime, the offender and the interests of society.
2.44 The triad has been criticised as elementary, vague and unsophisticated. One of these criticisms is that the role of victims of crime is not emphasised. In subsequent decisions the triad has been referred to in somewhat different terms:[37]
Punishment must fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances.
and:[38]
In addition to the matter of punishment, the deterrent aspect calls for a measure of emphasis, lest others think the game is worth the candle. Nevertheless, the appellants must not be visited with punishments to the point of being broken. Punishment should fit the criminal as well as the crime, be fair to the State and to the accused, and be blended with a measure of mercy.
2.45 However, failure by the legislature to provide a clear and unambiguous legislative framework for the exercise of the sentencing discretion, failure by the courts to develop firm rules for the exercise of the sentencing discretion and failure by the courts and the legislature to give firm guidance as to which sentencing theories or aims carry the most weight, brought much uncertainty and inconsistency into the sentencing process in South Africa.
2.46 A detailed discussion of criticism of the penal system in South Africa is not appropriate for the purpose of this issue paper. Some points of criticism are summarised below without claiming the list to be complete:
[1] AJ Ashworth “Criminal justice and deserved sentences” Criminal Law Review 1989 36 340-55.
[2] 1977 1 SA 602 (A).
[3] “Sentencing S v Young 1977 1 SA 602 (A)” 1977 SACC 189-191.
[4] Nairn 1977 SACC 189 et seq.
[5] At 191.
[6] MA Rabie SA Strauss Punishment: An introduction to principles fourth edition Lex Patria 1985 6.
[7] DP van der Merwe Sentencing Juta Johannesburg 1-7.
[8] (1984 3 SA 327 (A) at 330 D-E).
[9] Section 276.
[10] Ruled to be unconstitutional by the Constitutional Court in S v Makwanyane and another 1995 2 SACR 1 (CC).
[11] Ruled to be unconstitutional by the Constitutional Court in S v Williams and Others 1995 (2) SACR 251 (CC).
[12] See for example section 170 (1) and (2) of the Water Act, 54 of 1956; section 46 of the Atmospheric Pollution Prevention Act, 45 of 1965.
[13] See for example section 11 (2) of the Physical Planning Act, 88 of 1967.
[14] 1987 3 SA 717 (A).
[15] See S v M 1976 3 SA 644 (A); S v N 1988 3 SA 450 (A) at 465 I-J; S v Petkar 1988 3 SA 571 (A).
[16] S v Pillay 1977 4 SA 531 (A).
[17] S v De Jager and Another 1965 2 SA 616 (A).
[18] Persadh v R 1944 NPD 357, S v M 1990 2 SACR 509 (E); S v George 1992 1 SACR 250 (W).
[19] S v Victor 1970 (1) SA 427 (A).
[20] J H van Rooyen “The decision to imprison - the courts’ need for guidance” 1980 SACC 228.
[21] 1977 2 SA 155 (A).
[22] 1979 2 SA 70 (A).
[23] 1984 3 SA 3 SA 327 (A) at 330 D-E
[24] 1963 1 PH 96 (N).
[25] 1985 2 SA 120 (A).
[26] 1956 1 SA 649 (T).
[27] 1977 3 SA 830 (A).
[28] 1980 3 SA 851 (A).
[29] 1989 4 SA 209 (C).
[30] 1989 4 SA 709 (T).
[31] 1992 2 SACR 625 (A).
[32] 1993 1 SACR 209 (A).
[33] 1990 2 SA 802 (A) at 817 C-D.
[34] At 822 C-D.
[35] 1994 1 SACR 7 (0).
[36] 1969 2 SA 537 (A) at 540G.
[37] S v Khumalo 1973 3 SA 697 (A) at 698A.
[38] S v Sparks 1972 3 SA 396 (A) at 410H.
[39] Commission of Enquiry into the Penal System of the Republic of South Africa.
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