MEMORANDUM ON THE OBJECTS OF THE CRIMINAL LAW (SENTENCING) AMENDMENT BILL, 2007

 

1.         BACKGROUND

1.1              The Criminal Law Amendment Act, 1997 (Act No. 105 of 1997) (hereinafter referred to as the Act),  which came into operation on 1 May 1998, dealt with the abolition of the death penalty and created a legal regime of discretionary minimum sentences in respect of certain serious offences.  Sections 51 and 52 of the Act make provision for the imposition of minimum sentences in respect of serious offences.  These offences are categorised in terms of their degree of seriousness and are listed in Parts I-IV of Schedule 2 to the Act.  In terms of section 51(3), a High Court or regional court is given a discretionary power to impose such lesser sentence, if that court is satisfied that substantial and compelling circumstances exist, which justifies the imposition of a lesser sentence than the prescribed minimum sentence.

 

1.2              The constitutional validity of both sections 51 and 52 of the Act was tested in 2000 (State v Dzukuda) and 2001 (State v Dodo), respectively.  These cases dealt with two major challenges on two different grounds, namely an accused’s right to a fair trial and the independence of the judiciary.  The Constitutional Court rejected both these challenges.  The Constitutional Court in Dzukuda held that “it had not been established, either for the reasons furnished in the High Court judgment, or for any other reason, whether taken individually or collectively that the provisions of section 52 of the Act limited an accused’s right to a fair trial under section 35(3) of the Constitution”. The Constitutional Court in Dodo, in interpreting the words “substantial and compelling circumstances” in section 51(3) of the Act endorsed the step-by-step sentencing procedure set out in S v Malgas (2001).  The Court held in this regard that the interpretation of the Supreme Court of Appeal “steers an appropriate path, which the Legislature doubtless intended, respecting the Legislature’s decision to ensure that consistently heavier sentences are imposed in relation to the serious crimes covered by section 51 and at the same time promoting ‘the spirit, purport and objects of the Bill of Rights’.”  In dealing with the issue of the separation of powers and the court’s role in sentencing, the Court concluded as follows:  “While our Constitution recognises a separation of powers between the different branches of the state and a system of appropriate checks and balances on the exercise of the respective functions and powers of these branches, such separation does not confer on the courts the sole authority to determine the nature and severity of sentences to be imposed on convicted persons. Both the legislature and the executive have a legitimate interest, role and duty, in regard to the imposition and subsequent administration of penal sentences”.  The Constitutional Court in both instances dismissed the constitutional challenges against these provisions and upheld the constitutional validity of the Act.  Despite the fact that the legislation has been found to be constitutionally sound, certain practical problems, experienced with the application of sections 51 and 52 have been identified, based on inputs by the Judiciary, the National Prosecuting Authority and other stakeholders.  The Bill aims to address these practical problems, whilst retaining the principles underlying the Act.

 

2.         OBJECTS

2.1        The Bill aims to expedite the finalisation of serious criminal cases, to punish offenders of certain serious offences appropriately and to avoid secondary victimisation of complainants, which, inter alia, occurs when vulnerable witnesses have to repeat their testimony in more than one court.

 

2.2        The provision requiring a regional court to refer an accused for sentencing to a High Court is repealed.  Regional courts are granted jurisdiction to impose life sentences in cases where this is prescribed.  Provision is made for an automatic right of appeal in cases where a person is sentenced by a regional court to life imprisonment.  The National Director of Public Prosecutions is required to adopt policy directives that set out which prosecutions must from the outset be instituted in the High Courts and not in the regional courts.

 

2.3        When a sentence must be imposed in respect of the offence of rape, none of the following shall constitute substantial and compelling circumstances, justifying the imposition of a lesser sentence, namely:

(a)        any previous sexual history of the complainant;

(b)        an accused person’s cultural or religious beliefs about rape;  or

(c)        any relationship between the accused person and the complainant prior to the offence being committed.

 

2.4        The Act is not applicable to a person under the age of 16 years at the time of the commission of an offence referred to in sections 51(1) or 51(2)(a) or (b).  In terms of the Bill, the Act will also not apply to a person who was under the age of 18 years at the time of the commission of an offence referred to in section 51(2)(c).

 

2.5        A presiding officer, may when imposing a sentence under the Act, under the new provisions, take into account the time that an accused was incarcerated as an awaiting trial prisoner.

 

2.6        The Bill allows for up to half of a sentence imposed under section 51(2)(c) to be suspended.

 

2.7        The provision in terms of which sections 51 and 52 shall lapse after two years, is repealed.

 

3.         DEPARTMENTS/BODIES/PERSONS CONSULTED

The Bill was developed in response to problems identified with the practical application of the Act by the Judiciary, the National Prosecuting Authority, the Western Cape Consortium on Violence Against Women and other stakeholders who made submissions to the Department. 

 

4.         IMPLICATIONS FOR PROVINCES

None.

 

5.         ORGANISATIONAL AND PERSONNEL IMPLICATIONS

None.

 

6.         FINANCIAL IMPLICATIONS FOR STATE

None.

 

7.         COMMUNICATION IMPLICATIONS

None.

 

8.         PARLIAMENTARY PROCEDURE

8.1        The State Law Advisers and the Department of Justice and Constitutional Development are of the opinion that this Bill should be dealt with in terms of the procedure established by section 75 of the Constitution of the Republic of South Africa, 1996, since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.

 

8.2        The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.