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1.1 The sentencing of an offender is a public ritual of symbolic as well as practical significance. It is the moment when a court, speaking on behalf of society as a whole, solemnly declares the penalty that is deemed appropriate for the conduct of the offender, which has been found to contravene the criminal law. Sentencing is inherently controversial. There are many reasons for this.
1.2 Individual decisions are announced to a critical public who analyse them against a variety of expectations. They not only ask whether the sentences express public condemnation of the crime adequately and protect the public against future crimes by the reform and incapacitation of offenders and by the deterrence of both the individual offender and other potential offenders, but also whether the sentences are just in the sense that similar sentences are being imposed for offences that are of equal seriousness or heinousness. In addition there is a growing expectation that the sentence must be restorative, in the sense both of compensating the individual who suffered as the result of a crime and of repairing the social fabric that criminal conduct damages. All these concerns are inevitably particularly prominent amongst victims of crime, who have a special interest in the offences that they themselves have suffered.
1.3 Many of these potentially contradictory concerns are heightened by the contemporary South African experience. Increased fear of crime has led to calls for heavier sentences from many quarters. It is a public response that cannot be denied. At the same time the values of the new South African Constitution[2] are increasingly being accepted. With this acceptance has come the notion that old practices, including sentencing, have to be reviewed. Some sentences such as capital and corporal punishment have already been rejected on constitutional grounds as contrary to human dignity.[3]
1.4 Recently, the Constitutional Court has again warned that “[o]ne must be careful to ensure that the alarming level of crime is not used to justify extensive and inappropriate invasions of individual rights”.[4] At the same time, there is growing recognition that the equal protection of the law that the Constitution promises[5] also means that the rights of victims of crime need to be respected and reflected in appropriate sentences. What is appropriate in sentencing need not be what was always done in the past. There is increasing recognition that community sentences, of which reparation and service to others are prominent components, form part of an African tradition and can be invoked in a unique modern form to deal with many crimes that are currently sanctioned by expensive and unproductive terms of imprisonment.[6]
1.5 Views on best sentencing practice are startlingly diverse. Organs of the State too have different approaches to sentencing. The judicial branch, which is confronted by individual cases and the difficult question of how best to balance the different expectations in respect of sentence, tends to stress the flexibility it needs to fulfil its tasks. The democratically elected legislature is sensitive to public pressure to ensure that specific crimes that are seen as particularly threatening are adequately punished and may seek by legislation to ensure directly or indirectly that such penalties are imposed. The executive and administrative branch has to implement the sentences that are imposed in a manner that meets the standards set by the Constitution and other laws, but it must do so within a budgetary framework that inevitably is constrained by other essential State expenditure.
1.6 Given the range of public expectations about sentencing and the different emphases that, for structural reasons, the organs of state tend to place on them, it is clear that any sentencing reform requires making clear choices. It may well be that all expectations cannot simultaneously be met fully, but the function of a reformist intervention must be to address the major faults of the current system. It was for this reason that a decision was taken at an early stage to develop sentencing legislation that would deal as comprehensively as possible with the law relating to sentencing. Only in this way can explicit choices be made about various options.
1.7 Before putting forward the proposals of the Commission on a new sentencing framework, this report sets out the shortcomings that have generally been identified in sentencing in South Africa since the first democratic elections in 1994. It then outlines the immediate legislative response to these criticisms. This is followed by a description of the work undertaken by the Sentencing Committee of the South African Law Commission that has provided the background for this report and the discussion paper that preceded it. Two stages of this work are described. The account of the first stage sketches the problems surrounding sentencing as originally conceptualised when the Committee on Sentencing was established under the leadership of Judge van den Heever in 1996 and the investigations then undertaken. The account of the second stage outlines the work undertaken since Professor Van Zyl Smit became project leader in 1998. The material presented about both stages must be read together, as it encapsulates the information on which are based the substantive reform strategy of a new sentencing partnership put forward in Part II and the detailed proposals for new legislation contained in Part III of this discussion document.
1.8 Since 1994 a number of shortcomings have been identified in the way that sentences are imposed in South Africa. Briefly, these persistent criticisms have been the following:
a. Like cases are not being treated alike because there is unfair discrimination against some offenders, in particular, on grounds of race and social status. Such allegations are difficult to deal with, for a system in which there are no clear sentencing guidelines results in sentencers having a very broad discretion. This makes it difficult to rebut such accusations. In such a system, justice is not easily seen to be done.
b. The judiciary does not give sufficient weight to the seriousness of particular offences and therefore is imposing disproportionately light sentences in these cases. At the moment this complaint is particularly prominent for certain types of sexual offences, but the focus may shift, as other crimes become the object of public concern. In addition, the seriousness of some offences is being downplayed by not hearing views of victims, either in particular cases or about the heinousness of a type of crime generally.
c. Less serious offences are being dealt with by terms of imprisonment where more imaginative restitutive alternatives could provide solutions more satisfactory to all parties, while at the same time saving valuable prison resources for those offenders deserving harsher punishment.
d. Offenders are released from prison and other forms of sentence without having served their full sentences, or even a significant part of them, thus undermining the original sentences. Related to this is the charge that these release processes are themselves inadequate because they are done by closed bureaucracies according to unclear criteria, thus mirroring the shortcomings of the sentencing process itself.
1.9 The Government has responded legislatively to these criticisms in two primary ways:
a. Mandatory minimum sentences were introduced by the Criminal Law Amendment Act 105 of 1997. The Act came into force on 1 May 1998. It applies to certain offences committed after that date. Initially the Act applied only for two years but its operation has been extended for a further year. The Act lists some of the most serious offences such as murder, rape and robbery and describes factual situations in which mandatory sentences, including in some situations, life imprisonment, must be imposed, unless “substantial and compelling circumstances” indicating lesser sentences are present. This Act has the advantage of indicating clearly that specific offences committed in specific situations must be punished harshly. It therefore meets at least one of the concerns expressed above. However, in other respects the new Act has raised new difficulties, which will be considered below. It must be emphasised that the new Act was designed from the outset to be a temporary measure and that this was pointed out in Parliament by the Minister of Justice, who, when he introduced the Bill that became the 1997 Criminal Law Amendment Act, noted that further sentencing reform was envisaged.[7]
b. New release procedures were introduced by the Correctional Services Act 111 of 1998. These procedures, which have not yet been brought into operation, are designed to meet the criticism that accused persons are released too early and by an inappropriate process. In terms of the new law all prisoners must serve at least half their sentences in prison, or 25 years in the case of those sentenced to life imprisonment. After that they may be considered for conditional release on parole but they remain subject to recall for their full sentences. For some categories of crime this minimum non-parole period may be two-thirds or even four-fifths of the initial sentences. The procedure for release is also to be made considerably more transparent by the appointment of new quasi-judicial parole boards on which lay people are represented. There is also provision for the views of the victims of crime to be taken into account by such boards in certain instances.
1.10 The new release procedures, which are designed to be a permanent feature of the system, meet many of the objections raised against the current release procedure. However, they face the same criticism as the mandatory sentence law, namely that there has been no attempt to calculate what impact it will have on the prison population, or on the number of offenders subject to community corrections. Indeed, when the new release mechanism was first proposed, the point was made that it would place increased pressure on the prison system unless the number and length of prison sentences would be reduced substantially. Up to now this has not been done.
1.11 The Government also responded to criticism of the sentencing system by asking the South African Law Commission to investigate. In 1996 the Minister of Justice appointed a new Project Committee of the Law Commission to investigate all aspects of sentencing. This Committee operated from late 1996 to March 1998 under the leadership of Judge Leonora van den Heever. In practice the investigations of this committee focused almost exclusively on two aspects, namely mandatory minimum sentences and restorative justice. These investigations are significant as they provided important background material for the current report.
1.12 At an early stage of its work it became clear to the Van den Heever Committee that the government wished to enact mandatory minimum sentences as a temporary measure. The Committee was opposed to this course but decided that it should launch its own investigation into mandatory minimum sentences as a possible component of sentencing reform. Accordingly, it developed an issue paper on mandatory minimum sentences and invited public comment on the subject by 30 September 1997.[8] The issue paper was a more wide-ranging document than its title suggests. It analysed the main characteristics of sentencing in South Africa and also considered sentencing developments in a number of countries in order to isolate various options for reform.[9] On the basis of this analysis comments were invited on the following options for reform:
* Enactment of sentencing guidelines: presumptive sentencing guidelines
One option is to set up a sentencing commission to develop sentencing guidelines in respect of certain offences. In this regard the best example is the Minnesota sentencing guidelines in the USA where the enabling statute directed the sentencing commission to develop guidelines, which were to specify presumptively correct prison commitment and prison duration rules. Specific principles are used as determinants of the presumptive correct sentence, for example the severity of the offence and the accused’s criminal record. The court is allowed to depart from the presumptive correct sentence if special circumstances exist.
* Voluntary sentencing guidelines
This option requires the development of sentencing guidelines, which are not required by law to be followed, but which simply guide the courts in the exercise of their discretion. Such policies are based on past sentencing practices but may be elaborated either by appellate courts or more formally by a sentencing commission or council.
* The adoption of legislative guidelines that assist in determining the choice and length of the punishment
This option is based on the Swedish model, which provides that the legislature determines the nature of punishment and the penal value attributed to the particular offence. The penal value is determined with special regard to the harm, offence or risk which the conduct involved and what the accused realized or should have realized about the conduct including his intentions or motives.
* The enactment of principles of sentencing including guidelines that determine the imposition of imprisonment
This option is based on the proposals of the Canadian Sentencing Commission, which recommended the enactment of the principles of sentencing. Provision is made, inter alia, for principles governing the determination of the sentence, i.e. that the sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender for the offence. In addition a number of factors are listed, which the court has to consider in determining the sentence, including aggravating and mitigating circumstances, the need for consistency in sentencing of offenders for similar offences committed, the need not to impose excessive sentences, the fact that imprisonment should not be imposed solely for the purpose of rehabilitation, and the circumstances under which imprisonment should be imposed.
* The enactment of presumptive sentencing guidelines to guide the imposition of custodial and non-custodial sentences
Presumptive guidance takes the form of statutory orders that impose a predetermined sentence range to the judge. Although presumptive guidelines are statutory in nature they can allow the continued existence of a sentencing discretion if the judge is allowed to deviate from the adopted range under certain circumstances.
* The enactment of mandatory minimum sentences combined with a discretion to depart from the sentences under certain conditions
This option implies the enactment of a mandatory minimum sentence for example 15, 20 and 25 years imprisonment for a first, second and third conviction respectively, coupled with a discretion to the sentencing officer to depart from the prescribed sentence if special circumstances exist. In such circumstances the sentencing court is required to record the circumstances and to give written reasons for departure from the prescribed sentence.
1.13 To facilitate a focussed debate, respondents were requested to formulate submissions with the following questions in mind:
1.14 The issue paper elicited a wide variety of responses ranging from acceptance of a Minnesota-style guideline system to total rejection of any legislative reform in the area of sentencing.[10]
1.15 The work of the Van den Heever Committee was not limited to mandatory sentencing. It also published an issue paper on restorative justice for which it set a closing date of 30 June 1997. This paper dealt with a restorative approach to the criminal justice system and sought comment on victims and their treatment in South African law; victim’s rights; victim and community participation in sentencing; compensation for victims; victim impact statements and victim-offender mediation.[11] Of particular relevance for the current report are the comments on matters related to sentencing (compensation, victim impact statements and victim participation in the sentencing process), as the other matters will be dealt with in a separate investigation.[12]
1.16 The Van den Heever Committee completed its term of office without consolidating its work in a discussion paper or legislative proposals. In late 1998 a new committee was appointed by the Minister of Justice and Professor Dirk van Zyl Smit was elected project leader. The new Committee had the same general brief of sentencing reform and was also to consider the position of victims in the criminal justice system. At an early stage the new committee decided that it accepted the challenge of creating a comprehensive legislative framework for sentencing in South Africa. It noted the work of its predecessor and decided not to repeat the investigations that it had done but simply to take the material gathered into account in its own deliberations. However, since those investigations had been undertaken the situation had changed. Most importantly, the mandatory minimum sentencing legislation (sections 51-54 of the Criminal Law Amendment Act 105 of 1997) had been enacted. It therefore commissioned a study that would seek to determine the impact that the new Act had had, both on the sentencing outcomes and on the perceptions of this form of sentencing by key role players in the criminal justice system. In order to understand the thinking behind the minimum sentencing legislation the committee also commissioned a detailed study of the events that led up to its enactment, including an analysis of the submission made about it to Parliament. Finally in this regard, close attention was paid to judgments of the courts that dealt with implementation of sections 51-54 of the 1997 Criminal Law Amendment Act.
1.17 On the question of victims of crime the committee adopted a different approach. It recognised that the earlier investigation of restorative justice, in particular that part of the issue paper that had dealt with the compensation for victims of crime generally, raised issues that went beyond sentencing. In practice, most offenders are not convicted, yet the victims of their crimes still require compensation. Only relatively few victims of crime have the opportunity to be confronted by convicted offenders in whose sentences restorative or compensatory elements can be recorded. Nevertheless, the new Committee was firmly convinced that victims of crime needed to have their interests specifically recognised and protected in the sentencing process. Accordingly, the Committee resolved to emphasise, without further investigation in the short term, these interests in the proposed comprehensive sentencing legislation while at the same time launching a separate and wider inquiry into a national compensation scheme for the victims of crime. It was granted permission by the Law Commission to establish a subcommittee to investigate further a national compensation scheme and other wider issues, including a victims charter, that go far beyond sentencing as they affect victims of crime at every stage of the criminal justice process. These wider issues are not the subjects of this report.
1.18 The primary new investigations commissioned by the current Committee on Sentencing were empirical studies that were undertaken between June 1999 and January 2000, firstly, on sentencing patterns both before and after the introduction of the 1997 Criminal Law Amendment Act and secondly on the attitudes of key role players to the Act. The research was commissioned to assist the Commission in acquiring data and other information on sentencing practices in South African courts and to provide the Commission with the information it required to evaluate the impact of the 1997 Criminal Law Amendment Act on sentencing practices and related court processes. The Commission was assisted in the research by the GTZ (Deutsche Gesellschaft für Technische Zusammenarbeit ) as part of the co-operative Legislative Drafting Project. The research on relevant quantitative aspects of sentencing was undertaken by experts affiliated to the Institute of Criminology at the University of Cape Town, while the Institute for Human Rights and Criminal Justice Studies at the Technikon South Africa and the Institute for Security Studies focused on the attitudes of key role players on sentencing.
1.19 Both studies, together with a comparative conclusion have subsequently been published.[13] The key empirical finding was that there were significant disparities in sentencing for serious offences, particularly on regional lines, and that these had persisted even after the coming into effect of the 1997 Criminal Law Amendment Act.[14] The 1997 Act was not without impact. It had increased sentences for some offences. In particular the sentence for rape had increased significantly, although not to the extent that legislation had envisaged. The study found that the newly emerging sentencing patterns could have a major impact on the prison population as longer sentences would lead to growing overcrowding.
1.20 The qualitative study revealed a wide range of opinions amongst criminal justice professionals on sentencing practice. Detailed criticism of aspects of sentencing, such as the limited use made of orders for restitution and compensation were noted. Many decried perceived inconsistencies in sentencing. Opinion on the 1997 Act was divided but there was strong opposition, particularly among the judges interviewed, to the idea of mandatory minimum sentences
1.21 In addition to the two empirical studies, the Committee commissioned detailed research on the events surrounding the passage of the 1997 Criminal Law Amendment Act.[15] This study also analysed the submission made to Parliament at the time that the new law was being considered. The most important conclusion that can be gleaned from this research is that there was considerable divergence of views about the desirability of mandatory sentences or indeed of any attempt to limit sentencing discretion. The views of the different role players were largely similar to those reflected in the earlier research of the Van den Heever Committee and those again uncovered by the survey of attitudes commissioned by the Committee after the 1997 Act had come into operation.
1.22 In addition to the various studies it commissioned the Committee itself analysed the response, as reflected in the judgments of the courts, to the 1997 Criminal Amendment Act. Initially it appeared as if this would be a difficult task. The mandatory minimum sentencing provisions of the 1997 Criminal Law Amendment Act came into force on 1 May 1998 but it took some time for their effects to be felt as they applied only to crimes committed after that date.[16] There was a time lag before the various divisions of the High Court were called upon to interpret these provisions and there has been a further delay in the reporting of relevant judgments. By the second half of 1999 they started to appear regularly in the law reports. They give an interesting picture of the legal problems that the courts have encountered with this legislation and an indication of the pitfalls to be avoided in new South African sentencing legislation.
1.23 The first, and arguably less important, question related to the sentencing jurisdiction of the courts. In particular, there was concern about the provision for offenders who had committed crimes for which the Act prescribed life sentences. Many such offences are tried in the regional courts and the Act provides that they have to be referred to the High Court for sentence as life imprisonment is not within the sentencing jurisdiction of the regional courts. There was a technical dispute about whether the regional court in fact had the jurisdiction to try cases in which a mandatory sentence might have to be imposed, but the question was settled by affirmative answers of full benches in both the Cape and Transvaal Divisions of the High Court.[17] Of more moment is the substantive criticism advanced by a number of judges of the procedure in terms of which the court that imposed sentence was not the trial court. As Davis J explained succinctly in S v Jansen: “It is difficult to obtain a sufficient understanding of the matter in its entirety when only matters of sentencing are referred to this [High] Court.”[18]
1.24 The second, and major, question about the legislation that has exercised the South African judiciary is the interpretation of the words, “substantial and compelling circumstances.” It is easy to see why this should be so. If “substantial and compelling circumstances” are found to be present the mandatory minimum sentences prescribed by the Act are not applicable. Then the Court is at large, as it would have been prior to the passage of the Act, to exercise its discretion on the imposition of sentence. There has been a wide range of interpretations of the words “substantial and compelling”. At the one extreme has been the view of Stegmann J in S v Mofokeng[19] that they allowed the sentencing court virtually no discretion: He explained that
for ‘substantial and compelling circumstances’ to be found, the facts of the particular case must present some circumstance that is so exceptional in nature, and that so obviously exposes the injustice of the statutorily prescribed sentence in the particular case that it could be described as ‘compelling’ the conclusion that the imposition of a lesser sentence than that prescribed by Parliament is justified.[20]
1.25 In Judge Stegmann’s view, factors that ordinarily would be regarded as aggravating or mitigating at sentence could not simply be weighed to see if they are a substantial and compelling ground for departure, unless they were of an “unusual and exceptional kind that Parliament cannot be supposed to have had in contemplation when prescribing standard penalties for certain crimes”.[21] To do otherwise would mean that the court was preferring its own judgment to that of Parliament and would “compromise the integrity of the court”.[22]
1.26 At the other extreme was the unreported judgment of Leveson J in S v Majalefa and Another [23] which held that notwithstanding the new legislation the starting point remained that consideration had to be given to all aggravating and mitigating factors in the traditional way. In this view the new Act was only an attempt to introduce a measure of conformity in the sentencing process and should therefore not be regarded as introducing a major change in the approach to sentencing.
1.27 Both extremes have found endorsement in unreported judgments in other divisions of the High Court. In the Natal Division Squires J in S v Madondo[24] emphasised that the intention of Parliament was that penalties for rape of a girl under 16 should be increased and that the court would not easily intervene to impose a lesser sentence as compelling reasons for doing so would not be lightly found. He explained that a “compelling” reason was “clearly more than just a disparity between what the Court feels may be sufficient and the prescribed minimum. To consider such a difference alone as constituting compelling reasons would, I think, be subversive of the legislature’s intention.” Judge Squires explained that compelling was a “strong” word that meant “‘almost irresistible’, constituting at least a strongly sensed obligation”. He went on to opine that factors such as the age of the girl; “nearly sixteen years or sixteen months”, or whether she was physically harmed or not, would usually not come into play for the purpose of sentencing under the new Act. The approach of Squires J, which of course is substantially similar to that adopted in S v Mofokeng, has been followed in other decisions in the same Division.[25]
1.28 The approach, which suggests that the new Act has changed little in the fundamental approach to sentencing, has also received further support. In S v Cimani[26] Jones J of the Eastern Cape Division noted that he would attempt a definition of “substantial and compelling circumstances”. He went on to hold:
In every case, however, the nature of the circumstances must convince a reasonable mind that a lesser sentence is a proper sentence and that it is justified when regard is had to
(a) the aggravating and mitigating features attendant upon the commission of what is already classified by the lawgiver as among the most serious of offences, and
(b) the interests of society weighed against the interests of the offence.
1.29 As in S v Majalefa, this is really the reassertion of the traditional sentencing principles. With these grounds of departure Judge Jones in Cimani found it easy to justify a departure from the prescribed minimum in the case before him.
1.30 In more recent judgments a more nuanced approach has developed between the interpretation that would allow the courts almost no room for manoeuvre and a reading that would limit the restrictions of the new legislation to an extent that arguably undermines the intention of the legislature completely. In S v Blaauw [27] Borchers J consciously attempted to steer an interpretative course between the two extremes. She found that the Act did narrow the discretion that courts had previously had to impose sentence and that it did so more rigorously than if the court had merely had to find that there were “circumstances” that justified it departing from the prescribed minima. On the other hand, the legislature had not defined what it meant by “substantial and compelling” as qualifiers of circumstances. It had not specified that the circumstances should be “exceptional”, which would make them even narrower. To determine if a departure was allowed one need not look for exceptional circumstances but at the cumulative effect of all the aggravating and mitigating circumstances of the case. If, in the light of these, the prescribed sentence would be “startlingly inappropriate” it could depart from them, but otherwise it was bound to impose them.[28] This approach has been followed, with minor qualifications, in subsequent decisions of the Witwatersrand Local Division of the High Court.[29]
1.31 The moderate approach has much to commend it, as it allows the courts some discretion without undermining the intention of the legislature. It remains difficult to apply however, as it requires the courts to consider, albeit within a different framework, all the aggravating and mitigating factors that it has traditionally considered. It is precisely the strategy of spelling out all manner of circumstances that allow a departure from the prescribed minima, which has led to some judgments of the courts being severely criticised by the public for having taken inappropriate factors into account. Perhaps the best example of this is S v Abrahams[30] where Foxcroft J held that the offender who had raped his own daughter was not a threat to society as a whole and that this was a mitigating factor that could be considered along with others in deciding not to impose the prescribed life sentence. While the public criticism of the judge for articulating a mitigating factor of this kind is entirely understandable and justified, it may be argued that the relatively inflexible structure of the legislation has led courts, who believe that the prescribed sentence would be inappropriate, to put forward ‘mitigating factors’ of this kind.
1.32 The words “substantial and compelling” are not common qualifiers in South Africa. They were probably adopted from the sentencing guidelines that have been developed by the Sentencing Commission in the American State of Minnesota to guide the courts in the exercise of their discretion.[31] Unlike the Minnesota guidelines the South African legislature has not spelt out further what they entail.[32]This is clearly a weakness but it does not mean that words cannot be interpreted without simply reintroducing existing principles. A novel interpretation is propounded by Davis J in S v Schwartz.[33] The learned judge emphasises that “the key to the application of ‘substantial and compelling’ must be the crime”.[34] He noted that this required a determination of the moral blameworthiness that could be attached to the offence in the particular circumstance under which it had been committed. This limits the range of factors that can legitimately be considered in determining whether there are “substantial and compelling circumstances” present that can justify a departure from the minimum. The focus on the relationship between the nature of the crime and the length of the sentence also impelled Davis J to emphasise the principle of desert as a single logical point of departure for his analysis. As he explained:
Thus the question arises as to the appropriate principle to guide the sentencing decision. Andrew von Hirsch in Von Hirsch and Ashworth Principled Sentencing at 197 submits that in the process of sentencing, the Court should take the principle of commensurate desert into account as a foundational requirement of justice:
‘This principle has its counterpart in common-sense notions of equity which people apply in their everyday lives. Sanctions, disproportionate to the wrong, are seen as massively unfair – whether it be an employee being fired for a minor rule infraction to make an example of him, or a school inflicting unequal punishment on two children for the same misdeed. The principle ensures that offenders are not treated as more (or less) blameworthy than is warranted by the character of the offence. Punishment ... imparts blame. A criminal penalty is not merely unpleasant ... it also connotes that the offender acted wrongly and is reprehensible for having done so...
The sterner the punishment, the greater the implicit blame; sending someone away for several years connotes that he is more to be condemned than does gaoling him for a few months or putting him on probation. In the allocation of penalties therefore the crime should be sufficiently serious to merit implicit reprobation. The principle of commensurate deserts ensures this.’
Given that the minimum sentencing provision of s 51 draws on that of Minnesota and the Minnesota system is predicated on the principle of desert, the latter is an important guideline to be applied in such cases.
1.33 This analysis of the underlying principles of the new Act is novel in South Africa, where various justifications of punishment are often lumped together in a somewhat confusing way. It shows that legislative intervention can lead to fundamental reassessment of principle. This is, however, the view of a single judge. A critic could argue that the use of the words “substantial and compelling” in temporary legislation is not a sufficiently clear basis for such a major innovation. We return to this question of primary sentencing principles when developing the criteria for a comprehensive sentencing system in the next chapter.
1.34 The constitutionality of the new Act was challenged in a number of cases. With the exception of S v Dzukuda; S v Tilly; S v Tshilo[35] which was decided on narrow procedural grounds in May 2000, that is, after the discussion paper had been finalised, these challenges were uniformly rejected. However, the responses to them are a useful indicator of the relationship between constitutional principle and legislative intervention in this sphere. The issue can best be summarised as follows.[36] Foreign jurisprudence, both Canadian[37] and Namibian,[38] quoted with approval by South African Courts,[39] indicates that any legislation that resulted in sentences that were grossly disproportionate to the crime would be unconstitutional on the grounds that they would be cruel, inhuman and degrading. A mandatory sentence regime runs the risk of being unconstitutional if in its application it results in grossly disproportionate sentences being imposed. The 1997 Criminal Law Amendment Act, precisely because it allows for departures from the prescribed minima in “substantial and compelling circumstances”, is not, on the face of it, a mandatory sentence regime of the constitutionally dubious kind. If, however, the interpretation of the departure clause were so narrow that it could result in such disproportionate sentences, it would be open to constitutional challenge. In S v Homareda[40] Cloete J suggested that courts should be alert to this danger and, if the result of applying the new legislation was disproportionality, they should refer the matter to the Constitutional Court. It is clear that any new sentencing legislation would have to bear these strictures in mind in determining whether it would pass constitutional muster. It will also have to consider the underlying principle that the constitutionally recognised dignity of all members of society requires that no sentence should restrict the autonomy of an offender more than is justified by legitimate functions of penal law.[41]
1.35 In Dzukuda Lewis J noted that there was a line of cases (that she was compelled to follow) that confirms that the prescription of sentences in the form that it is done by the 1997 Criminal Law Amendment Act is not “unfair and unconstitutional”. Nevertheless, she held that the procedure by which someone who was convicted of rape in a regional court had to be referred to a High Court for sentence, if a life sentence was mandatory, was unconstitutional, as it infringed the right of the person to be sentenced to a fair trial. However, this ruling was overturned by the Constitutional Court in September 2000.[42]
1.36 The question of mandatory sentences also highlights the confusion that exists on the relationship between life imprisonment and long sentences that may be served consecutively. In S v Ngubane[43] the accused was convicted of three counts of premeditated murder. The prescribed sentence for premeditated murder is life imprisonment. The judge seriously considered finding “substantial and compelling circumstances” for not imposing it because he believed that the offender would serve a longer period in prison if three fixed periods of imprisonment were imposed to run consecutively than three life sentences which have to run concurrently. In the end he decided that this was not a compelling circumstance. The fact that it was even considered is in itself worrying. The Supreme Court of Appeal has recently confirmed that life imprisonment is the heaviest sentence that can be imposed.[44] It reiterated that to impose such an exceptionally long term of imprisonment that the offender has no possible hope of ever being released, no matter what happens, does not belong in a civilised legal system.[45] Moreover, the practical justification for the sentence is also disappearing. Section 73 (6) of the new Correctional Services Act provides that all prisoners must be considered for release after they have served 25 years of their sentences. This effectively puts them on a par with prisoners sentenced to life imprisonment, as they in terms of the new Act must be considered for release after having served 25 years. This background is of significance for establishing the place of life sentences in relation to other sentences in any new sentencing system.
1.37 The findings of the study on sentencing patterns commissioned by the Committee is given further weight by recent statistics derived from the Department of Correctional Services.[46] South African prisons are suffering from overcrowding that has reached levels where the conditions of detention may not meet the minimum standards set in the Constitution. In the short term the problem is brought about by an enormous increase of prisoners awaiting trial. This problem is beyond the remit of this investigation. A closer examination of prison statistics shows, however, that in the medium term the change in sentencing patterns will produce an intolerable burden for an already overloaded system. The trend is that prison sentences of between 3 and 7 years have declined since 1995. However, sentences of 7 to 10 years, 10 to 15 years, 15 to 20 years, and 20 years to life have increased in the same period by 50%, 67%, 70 % and 124 % respectively. The longest sentences are clearly increasing the most. The effect of more very long sentences is of course cumulative, raising the spectre of a system eventually driven to drastic release strategies or, failing that, to collapse. Obviously, as the sentencing system regulates this ‘input’, this tendency has to be borne in mind in any long-term reform strategy.
1.38 Finally in this overview of evidence collected, it must be noted that there have of course been many developments and refinements in the sentencing systems of the countries that are mentioned in paragraph 1.11 above[47] since that research was completed in 1997. For current purposes these details are of less interest. One development though, of potential significance as a hybrid model, is the mechanism created for the development of sentencing guidelines in England and Wales. The Court of Appeal, Criminal Division, has long given guideline judgments that use individual cases to indicate the range within which sentences should be imposed by lower courts for particular offences or subcategories of them.[48] These guideline judgments deal exclusively with sentence levels and with aggravating and mitigating factors specific to the offence. They thus indicate to the lower courts what factors they should consider when deciding on the appropriate sentencing level within the proposed range. Generally these judgments have been somewhat more prescriptive than South African sentencing judgments and, by giving more explicit guidance, provided more consistency. Historically, however, there was no compulsion on the Court of Appeal to give such judgments, with the result that the development of sentencing tariffs was somewhat piecemeal and little attention could be paid to the development of the sentencing system as a whole.
1.39 This position has been substantially changed by sections 80 and 81 of the omnibus Crime and Disorder Act 1998. Section 81 provides for the creation of an expert Sentencing Advisory Panel to advise the Court of Criminal Appeal on the new functions that it has in terms of section 80. The essence of these functions is that whenever the Court of Appeal deals with an appeal against sentence or when asked to do so by the Panel, it must consider formulating guidelines. Where such guidelines already exist the Court must consider whether it should review them. Section 80(3) goes on to provide:
“Where the Court decides to frame or revise such guidelines, the Court shall have regard to -
(a) the need to promote consistency in sentencing;
(b) the sentences imposed by the courts of England and Wales for offences of the relevant category;
(c) the cost of different sentences and their relative effectiveness in preventing re-offending;
(d) the need to promote public confidence in the criminal justice system; and
(e) the views communicated to the Court by the Sentencing Advisory Panel.”
1.40 The procedures specified by section 81 for the operation of the Sentencing Advisory Panel provide that it may, at any time or when instructed to do so by the Secretary of State, propose to the Court of Appeal that it frame guidelines. When the Court decides to frame or revise guidelines it must notify the Panel. When the Panel takes a proposal to the Court, or when the Court decides itself to frame or revise guidelines, the Panel must obtain the views of certain bodies and persons, formulate its own views and convey them to the Court, and specifically furnish information to the Court on the matters mentioned in section 80(3)(b) and (c), that is, on sentences imposed for similar offences and the cost and efficacy of different sentences.
1.41 It is too early to judge the efficacy of the Sentencing Advisory Panel. There has been some criticism of the detailed drafting of sections 80 and 81. Thus, for example, Dr. David Thomas has suggested that it is impractical for the Court of Appeal to consider setting guidelines in every one of the many appeals it hears.[49] A number of distinguished sentencing experts were appointed to the Panel in mid-1999 and the results of their work are being awaited with interest. The significance of the Panel for South Africa lies not in the details of its operation, but in the apparent acceptance by the English judiciary of the principle of integrating in a novel way expert knowledge and legislated criteria into the judicial sentencing process.
1.42 On 13 April 2000 the Commission published a discussion paper on a new sentencing framework. The closing date for comments was 31 May 2000. The discussion paper was distributed widely to key role players, including judges, magistrates, prosecutors, academics, Directors of Public Prosecutions, private legal practitioners, government departments and international experts on the law of sentencing. In addition, advertisements were placed in the newspapers drawing the public's attention to the discussion paper. The discussion paper was made available on the Internet and members of the public could write in to request copies
1.43 The discussion paper proceeded from the basis that the substantial criticism of the sentencing system that had been made to it, as well as it own research and analysis, required a systematic reformist intervention. It concluded that the ideal system should be seen to promote consistency in sentencing, deal appropriately with concerns that particular offences are not being regarded with an appropriate degree of seriousness, allow for victim participation and restorative initiatives and, at the same time, produce sentencing outcomes that are within the capacity of the State to enforce in the long term.
1.44 The discussion paper made a range of recommendations designed to achieve these goals. The most innovative proposal was that sentencing principles be clearly stated in law and that normative sentencing guidelines be established by a combination of a Sentencing Council and the Supreme Court of Appeal. Other aspects of the paper, relating to a reconfiguration of the sentences to be imposed and to consideration of the needs of victims and restorative justice generally were less controversial in principle, but required considerable attention to detail. The case for reform was not only argued in the abstract but the paper included a draft Sentencing Framework Act in which specific legislative form was given to the proposed innovations.
1.45 The publication of the discussion paper and the accompanying draft Act was followed by an extensive process of consultation. Comments were invited from those persons who had been sent the paper and from members of the public who requested it. A list of the persons and institutions that responded with written comments is attached in Annexure A. Public workshops on the discussion paper were widely advertised to stimulate further discussion. Four regional workshops were conducted during the period 12-15 June 2000 in Pretoria, Durban, Cape Town and Bloemfontein. At these workshops the proposals were subjected to intensive analysis and evaluation. A list of the participants attending the workshops is attached in Annexure B. After the conclusion of the workshops and an evaluation of the comments, the Commission’s initial proposals were reconsidered and a revised draft Bill was debated in detail at an intensive three-day seminar in Cape Town. This seminar was attended by the project committee members and a number of invited local and international experts. A list of participants is attached in Annexure C. During this seminar the Commission’s proposals for reform and the accompanying draft legislation were refined considerably.
1.46 Overall the many written and oral responses that were received, were helpful and broadly positive. Particularly encouraging among the written responses were those from leading sentencing scholars, such as Professor Andrew Ashworth, the Vinerian Professor of English Law at the University of Oxford, Professor Chris Clarkson of the University of Leicester, Professor Andrew von Hirsch, Professor of Penal Theory and Penal Law at the University of Cambridge and Professors Stephan Terblanche and Dana van der Merwe of the University of South Africa. Although they made many detailed suggestions for improvements these scholars, as well the equally eminent foreign experts that attend the seminar in Cape Town, endorsed the idea of a sentencing framework roughly along the lines proposed in the discussion paper.
1.47 Most of the South African respondents too agreed with the basic approach of the discussion paper, namely that sentencing should be the outcome of a legislatively structured partnership between the various branches of government. However, the fundamental premise was not acceptable to all. In particular, the judges of the Orange Free State and Witwatersrand Divisions of the High Court objected to the idea of sentencing guidelines developed by a Sentencing Council, even if these allowed for a degree of flexibility in their application. In their opinion, sentencing depended on the “experience, humanity, moral judgment and good sense of judicial officers”.[50] They argued that a legislative framework was unlikely to structure sentencing discretion fairly, as it could always be avoided. In any event, they believed that the need to give reasons coupled with rules of precedent and safeguards of an appellate system was sufficient to guarantee a just sentencing framework. Neither submission offered any positive suggestions for legislative reform of sentencing in South Africa.
1.48 In its deliberations on the discussion paper the Commission paid considerable attention to both these objections in principle and to the more detailed suggestions for improvements that were made by many of the respondents. In part II, which follows immediately, it gives its overall response to them. In Part III, where it deals with the five chapters of the draft Act in detail, some of the changes that were made as result of comments received are highlighted. However, many of the refinements in the draft must also be attributed in a large part to eagle-eyed commentators, who often suggested alternative wording. The Commission is grateful for all these contributions, even where they are not acknowledged specifically.
[2] All references to the Constitution are to the Constitution of the Republic of South Africa, Act 108 of 1996, unless otherwise indicated.
[3] S v Makwanyane and another 1995 (3) SA 391 (CC) (capital punishment); S v Williams and others 1995 (3) SA 332 (CC) (corporal punishment).
[4] S v Dlamini; S v Dladla and others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) at para. 68.
[5] See section 9(1) of the Constitution.
[6] See, for example, Vivien Stern Alternatives to prison in developing countries (1999).
[7] Hansard, Debates of the National Assembly 16 November 1997, cols. 6087-6088.
[8] South African Law Commission, Issue Paper 11 Sentencing: Mandatory minimum sentences June 1997 ISBN 0-621-27253-8.
[9] See chapters 2 and 3 of the Issue Paper and the comments on it in Appendix A of the Discussion Paper.
[10] These responses are summarised in Appendix A to Discussion Paper 91"Sentencing (A new Sentencing Framework)” ISBN 0-621 30070-5, April 2000.
[11] See extracts from the Issue Paper on Restorative Justice in Appendix B of the Discussion Paper.
[12] A summary of the responses received is contained in Appendix B of the Discussion Paper.
[13] South African Law Commission “An empirical quantitative and qualitative study of the sentencing practices of the South African criminal courts, with particular emphasis on the Criminal Law Amendment Act, 105 of 1997" Research Paper 17, June 2000.
[14] The sample that was studied unfortunately did not allow a scientific conclusion on the presence or absence of racial disparities in sentencing.
[15] The full report produced for the Committee by Ms Paula Proudlock is not reproduced here but is on file with the South African Law Commission.
[16] S v Willemse 1999 (1) SACR 450 (C).
[17] See S v Ibrahim [1999] 1 All SA 265 (C); S v Mdatjiece unreported judgment of the Transvaal Provincial Division SH 375/98 delivered on 30 December 1998, referred to by Stegmann J per contra in S v Mofokeng 1999(1) SACR 502 (W) at 513h.
[18] 1999 (2) SACR 368 (C) at 372g.
[19] 1999 (1) SACR 502 (W).
[20] At 523c.
[21] At 524d.
[22] At 523b.
[23] Delivered on 22 October 1998 in the WLD, quoted extensively in S v Blaauw 1999 (2) SACR 295 (W) at 305i to 306i.
[24] Unreported judgment of the NPD, case CC22/99, delivered on 30 March 1999.
[25] See S v Ngubane Unreported judgment of the NPD, per Squires J, case CC31/99, delivered on 30 March 1999; S v Shinga unreported judgment of the D&CLD, per Nicholson J, case CC176/99, delivered on 26 October 1999: and (implicitly) S v Khuzwayo, unreported judgment of the D&CLD, per Combrink J, case CC103/99, delivered on 30 August 1999.
[26] Unreported judgment of the ECPD, case CC11/99, delivered on 28 April 1999.
[27] Supra.
[28] At 311a-h.
[29] S v Dithotze 1999 (2) SACR 315 (W); S v Homareda 1999 (2) SA 319 (W). S v Segole 1999 (2) SACR 115 (W) and S v Zitha and others 1999 (2) SACR 404 (W), both of which follow the approach adopted by Stegmann J in S v Mofokeng supra were both decided prior to the decisions in Blaauw, Dithotze and Homarada.
[30] Unreported judgment of the CPD, case SS 99, delivered 20 September 1999.
[31] D van Zyl Smit “Mandatory Minimum Sentences and Departures from them in Substantial and Compelling Circumstances” (1999) 15 SAJHR 270.
[32] S v Blaauw supra at 303g.
[33] 1999 (2) SACR 380 (C).
[34] At 386b.
[35] 2000 (3) SA 229 (W).
[36] For a fuller constitutional analysis, see D van Zyl Smit “Sentencing and Punishment” in M Chaskalson et al (eds.) Constitutional Law of South Africa (Revision Service 5, 1999) 28-6 – 28-10a.
[37] Smith v The Queen (1987) 34 CCC (3d) 97; R v Goltz (1992) 67 CCC 481.
[38] S v Vries 1996 (2) SACR 638 (Nm); S v Likwa 1999 (2) SACR 44 (Nm).
[39] S v Jansen supra at 373g-374g; S v Schwartz supra at 383f-j.
[40] 1999 (2) SACR 319 (W) at 326a.
[41] See S v Schwartz supra at 386h to 387b.
[42] S v Dzuduka; S v Tilly; S v Tshilo unreported judgment of the CC case CCT 23/00 delivered on 27 September 2000.
[43] Unreported judgment of the D&CLD, per Magid J, case 160/99, delivered 8 November 1999.
[44] S v Siluale en ander 1999 (2) SACR 102 (SCA) at 106i.
[45] Ibid. at 106j-107a.
[46] Statistics presented to the National Council for Correctional Services in January 2000.
[47] See also Appendix A of the discussion paper.
[48] Andrew Ashworth Sentencing and Criminal Justice (2 ed, 1995) 349.
[49] David Thomas “Sentencing Guidelines” Sentencing News Issue 2, 15 August 1999. 10-11.
[50] Quoted from the submission by the Judges of the Witwatersrand LocalDivision of the High Court.
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